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Code · REGISTER · 2008-02-20 · Postal Service TM · Rules and Regulations

Rules and Regulations. Final rule

87,567 words·~398 min read·/register/2008/02/20/08-690

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

BILLING CODE 4910-15-M POSTAL SERVICE 39 CFR Part 20 Revised Standards for First-Class Mail International TM Service AGENCY: Postal Service TM . ACTION: Final rule. SUMMARY: The Postal Service will adopt new mailing standards and prices for First-Class Mail International service on May 12, 2008, which reflects current First-Class Mail domestic shape-based standards. Our revisions recognize that each mailpiece shape—letter, flat, and parcel—has substantially different processing costs that needs to be covered.
Currently, the First-Class Mail International pricing structure does not have a distinction between letter-size, flat-size, and package (small packet) pricing. DATES: *Effective Date:* 12:01 a.m. on May 12, 2008. FOR FURTHER INFORMATION CONTACT: Christy Bonning, 202-268-2108. SUPPLEMENTARY INFORMATION: The Postal Service's classification changes and new pricing structure for First-Class Mail International items will enhance efficiency and assist that items mailed at First-Class Mail International prices cover their costs.
The Postal Service adopts the following changes to *Mailing Standards of the United States Postal Service* , International Mail Manual (IMM®), which is incorporated by reference in the *Code of Federal Regulations* . See 39 CFR Part 20. List of Subjects in 39 CFR Part 20 Foreign relations, International postal services. Accordingly, 39 CFR part 20 is amended as follows: PART 20—[AMENDED] 1. The authority citation for 39 CFR part 20 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 401, 404, 407, 408, 3622, 3632, and 3633. 2.
Revise the following sections of *Mailing Standards of the United States Postal Service* , International Mail Manual (IMM), as follows: 1 International Mail Services 140 International Mail Categories *[Delete 142 in its entirety (moving relevant information to 241, as incorporated later in this text), and renumber 143 as 142.]* 2 Conditions for Mailing 240 First-Class Mail International *[Revise 241 (including relevant information previously incorporated in 142 to read as follows:]* 241 Description 241.1 General The First-Class Mail International classification encompasses all categories of international mail that prior to May 14, 2007, were categorized as airmail letter-post and economy letter-post, postcards and postal cards, printed matter, and small packets that were formerly categorized as LC (letters and cards) and AO (other articles). 241.2 Mailable Matter Any article that is otherwise acceptable and not prohibited by the Postal Service or country of destination, subject to applicable weight and size limits, may be mailed at the First-Class Mail International price. 241.3 Color Light-colored envelopes and cards that do not interfere with the reading of the address and postmark must be used.
Do not use brilliant colors. 241.4 Quality Envelopes, cards, and packaging materials must be constructed strong enough to withstand normal handling. Highly glazed paper or paper with a design that affects readability or processing is not acceptable. 241.5 Window Envelopes Window envelopes must be used under the following conditions: a. The address window must be parallel with the length of the envelope. b. The address window must be in the lower portion of the address side. c.
Nothing but the name, address, and any key number used by the mailer may appear through the address window. d. The return address should appear in the upper-left corner. If there is no return address and the delivery address does not show through the window, the piece will be handled as undeliverable mail. e. The address disclosed through the window must be on white paper or paper of a very light color. f. When used for registered mail, window envelopes must conform to the conditions in DMM 503. g.
Open panel envelopes, i.e., those in which the panel is not covered with a transparent material, are not acceptable in international mail. 241.6 Bordered Envelopes and Cards Envelopes and cards that have green-colored bars or red- and blue-striped borders may be used for the sending of First-Class Mail International items. 242 Postage *[Revise 242.1 as follows:]* 242.1 Prices See the Individual Country Listings for First-Class Mail International postage prices that are applicable to specific destination countries and territorial possessions.
The country-specific price group designations that apply to First-Class Mail International are as follows: Afghanistan 6 Dominica 9 Lebanon 8 San Marino 5 Albania 4 Dominican Republic 9 Lesotho 7 Sao Tome and Principe 7 Algeria 8 Ecuador 9 Liberia 7 Saudi Arabia 8 Andorra 5 Egypt 8 Libya 8 Senegal 7 Angola 7 El Salvador 9 Liechtenstein 5 Serbia-Montenegro 5 Anguilla 9 Equatorial Guinea 7 Lithuania 4 Seychelles 7 Antigua and Barbuda 9 Eritrea 7 Luxembourg 5 Sierra Leone 7 Argentina 9 Estonia 4 Macao 6 Singapore 6 Armenia 4 Ethiopia 8 Macedonia, Republic of 4 Slovak Republic 5 Aruba 9 Falkland Islands 9 Madagascar 7 Slovenia 5 Ascension 7 Faroe Islands 5 Malawi 7 Solomon Islands 6 Australia 3 Fiji 6 Malaysia 6 Somalia 1 na Austria 5 Finland 5 Maldives 6 South Africa 7 Azerbaijan 4 France 5 Mali 7 Spain 5 Bahamas 9 French Guiana 9 Malta 5 Sri Lanka 6 Bahrain 8 French Polynesia 6 Martinique 9 Sudan 7 Bangladesh 6 Gabon 7 Mauritania 7 Suriname 9 Barbados 9 Gambia 7 Mauritius 7 Swaziland 7 Belarus 4 Georgia, Republic of 4 Mexico 2 Sweden 5 Belgium 5 Germany 5 Moldova 4 Switzerland 5 Belize 9 Ghana 7 Mongolia 6 Syrian Arab Republic 8 Benin 7 Gibraltar 5 Montserrat 9 Taiwan 6 Bermuda 9 Great Britain and Northern Ireland 5 Morocco 8 Tajikistan 6 Bhutan 6 Greece 5 Mozambique 7 Tanzania 7 Bolivia 9 Greenland 5 Namibia 7 Thailand 6 Bosnia-Herzegovina 4 Grenada 9 Nauru 6 Togo 7 Botswana 7 Guadeloupe 9 Nepal 6 Tonga 6 Brazil 9 Guatemala 9 Netherlands 5 Trinidad and Tobago 9 British Virgin Islands 9 Guinea 7 Netherlands Antilles 9 Tristan da Cunha 7 Brunei Darussalam 6 Guinea-Bissau 7 New Caledonia 6 Tunisia 8 Bulgaria 4 Guyana 9 New Zealand 6 Turkey 4 Burkina Faso 7 Haiti 9 Nicaragua 9 Turkmenistan 6 Burma 6 Honduras 9 Niger 7 Turks and Caicos Islands 9 Burundi 7 Hong Kong 3 Nigeria 7 Tuvalu 6 Cambodia 6 Hungary 4 Norway 5 Uganda 7 Cameroon 7 Iceland 5 Oman 8 Ukraine 4 Canada 1 India 6 Pakistan 6 United Arab Emirates 8 Cape Verde 7 Indonesia 6 Panama 9 Uruguay 9 Cayman Islands 9 Iran 8 Papua New Guinea 6 Uzbekistan 6 Central African Republic 7 Iraq 8 Paraguay 9 Vanuatu 6 Chad 7 Ireland 5 Peru 9 Vatican City 5 Chile 9 Israel 8 Philippines 6 Venezuela 9 China 3 Italy 5 Pitcairn Island 6 Vietnam 6 Colombia 9 Jamaica 9 Poland 4 Wallis and Futuna Islands 6 Comoros 7 Japan 3 Portugal 5 Western Samoa 6 Congo (Brazzaville), Republic of the 7 Jordan 8 Qatar 8 Yemen 8 Congo, Democratic Republic of the 7 Kazakhstan 6 Reunion 9 Zambia 7 Costa Rica 9 Kenya 7 Romania 4 Zimbabwe 7 Cote d Ivoire (Ivory Coast) 7 Kiribati 6 Russia 4 Croatia 4 Korea, Democratic People's Republic of (North Korea) 6 Rwanda 7 Cuba 9 Korea, Republic of (South Korea) 3 Saint Christopher and Nevis 9 Cyprus 4 Kuwait 8 Saint Helena 7 Czech Republic 4 Kyrgyzstan 6 Saint Lucia 9 Denmark 5 Laos 6 Saint Pierre and Miquelon 4 Djibouti 7 Latvia 4 Saint Vincent and the Grenadines 9 1 na = First-Class Mail International is not available. *[Renumber current 242.2 as 242.3.
Add new 242.2 as follows:]* 242.2 Price Computation First-Class Mail International prices are charged per ounce or fraction thereof; any fraction of an ounce is rounded up to the next whole ounce. For example, if a piece weighs 1.2 ounces, the weight (postage) increment is 2 ounces. The minimum postage per addressed piece, except postcards, is that for a piece weighing 1 ounce. 242.3 Payment of Postage 243 Physical Characteristics *[Delete current 243.1 in its entirety. Revise and renumber 250 through 254.6 as 243.1 through 243.17 as follows:]* 243.1 Postcards 243.11 General a.
Postcards consist of single cards sent without a wrapper or envelope. Folded (double) cards must be mailed in envelopes at the First-Class Mail International letter price. b. Postcards must be made of cardboard or paper that meets the material and color specifications in *241.* 3 and 241.4. 243.12 Addressing See 122. 243.13 Postage Prices and Fees The postage prices for postcards are as follows: a. Canada and Mexico—$0.72 b. All other countries—$0.94 243.14 Description 243.141 Reply—Paid Cards Reply-paid cards are not accepted in international mail, except as provided in 132.2. 243.142 Privately Manufactured Postcards Privately manufactured postcards, except picture postcards, must bear the heading *Postcard* . 243.143 Weight Limit Postcards must meet the requirements in 241.4. 243.144 Dimensions Each postcard claimed at a card price must be: a.
Rectangular. b. Not less than 3 1/2 inches high or 5 1/2 inches long or 0.007 inch thick. c. Not more than 4 1/4 inches high or 6 inches long or 0.016 inch thick. Note: Unenclosed cards exceeding the size limits for postcards are mailable at the First-Class Mail International letter price if they do not exceed 4 3/4 inches high or 9 1/4 inches long. 243.15 Marking The sender should mark postcards *Par Avion* or affix Label 19-A, *Par Avion Airmail,* or Label 19-B, *Par Avion Airmail,* on the left side on the front. 243.151 Right Half of Postcard The right half of the address side of a card must be reserved for the address of the addressee and postal notations or labels. 243.152 Left Half and Reverse Side The sender may use the left half of the address side of the card and the reverse side for a message or permissible attachments.
The sender must use the upper-left half of the address side for his or her return address. (Unless they bear the name and address of the sender, undeliverable cards are disposed of in the country of destination.) 243.16 Permitted Attachments The following may be glued on the left half of the address side of a card, or on the side opposite the address side, if they are made of paper or other thin material and adhere completely to the card: a. Clippings of any kind. b. Illustrations or photographs. c.
Labels other than address labels. d. Stamps of any kind, except stamps likely to be confused with postage stamps, must not be placed on the address side of the card. e. Address labels or address tabs that may be glued to the address side of the card. 243.17 Nonpermitted Attachments A card may not bear an attachment that is: a. Other than paper. b. Not totally adhered to the card surface. c. An encumbrance to postal processing. *[Delete sections not used in 250 Postcards: 251.3 in its entirety, Titles of 253 and 254.] [Revise title of 243.2 as follows:]* 243.2 Letters *[Renumber 243.21 as 243.22 and add new 243.21 as follows:]* 243.21 Weight Limit ** The weight limit is 3.5 ounces.
(First-Class Mail International letter-size pieces over 3.5 ounces are charged First-Class Mail International flat-size prices.) *[Revise renumbered 243.22 as follows:]* 243.22 Dimensions Letter-size mail must be rectangular and meet the following dimensions: a. Not less than 5 1/2 inches long or 3 1/2 inches high, or 0.007-inch thick. b. Not more than 11 1/2 inches long or more than 6 1/8 inches high or more than 1/4 -inch thick. Note: For the purpose of determining mailability or machinability of a letter-sized piece (see 243.23): the length is the dimension parallel to the delivery address as read, and the height is the dimension perpendicular to the length. *[Delete old 243.22 and 243.23 (renumbered 243.23 and 243.24).
Revise and renumber old 243.24 (renumbered 243.25) as 243.23 as follows:]* 243.23 Nonmachinable Surcharge A $0.20 per-piece surcharge applies to a First-Class Mail International letter, regardless of weight, with one or more of the following nonmachinable characteristics: a. Has an aspect ratio (length divided by height) of less than 1.3 or more than 2.5. b. Is polybagged, polywrapped, or enclosed in any plastic material. c. Have clasps, strings, buttons, or similar closure devices. d.
Contains items such as pens, pencils, or loose keys or coins that cause the thickness of the mailpiece to be uneven. e. Is too rigid (does not bend easily when subjected to a transport belt tension of 40 pounds around an 11-inch diameter turn). f. Is more than 4 1/4 inches high or 6 inches long and less than 0.009 inch thick. g. Has a delivery address parallel to the shorter dimension of the mailpiece. h. Is a self-mailer with a final folded edge perpendicular to the address, if the piece is not folded and secured according to DMM 201.3.13.1. i.
Is a booklet-type piece with the bound edge (spine) along the shorter dimension of the piece or at the top, unless prepared according to DMM 201.3.13.2. *[Add new 243.3 through 243.432 as follows:]* 243.3 Large Envelopes (Flats) 243.31 Weight Limit The weight limit is 4 pounds. 243.32 Dimensions and Characteristics Large envelopes (flats) must meet the following dimensions and characteristics: a. More than 11 1/2 inches long, or more than 6 1/8 inches high or more than 1/4 -inch thick. b.
Not more than 15 inches long, or more than 12 inches high, or more than 3/4 -inch thick. c. Flexible (see 243.33). d. Rectangular. e. Uniformly thick as stated in 243.34. Note: The length of a large envelope
(flat)is the longest dimension. The height is the dimension perpendicular to the length. A First-Class Mail International large envelope
(flat)that does not meet the standards in 243.3 is not eligible for large envelope
(flat)size price and are charged the applicable package (small packet) price. 243.33 Minimum Flexibility Large envelopes (flats) must be flexible. Boxes, with or without hinges, gaps, or breaks that allow the piece to bend, are not considered large envelopes (flats). Tight envelopes or wrappers that are filled with one or more boxes are not considered large envelopes (flats). At the customer's option, a customer may perform the following test on their own mailpieces. When a postal employee observes a customer demonstrating that a flat-size piece is flexible according to these standards, the employee does not need to perform the test. Test flats as follows: a. All large envelopes (flats) (see Exhibit 243.33a): 1. Place the piece with the length parallel to the edge of a flat surface and extend the piece halfway off the surface. 2. Press down on the piece at a point 1 inch from the outer edge, in the center of the piece's length, exerting steady pressure. 3. The piece is not flexible if it cannot bend at least 1 inch vertically without being damaged. 4. The piece is flexible if it can bend at least 1 inch vertically without being damaged and it does not contain a rigid insert. No further testing is necessary. 5. Test the piece according to 243.33b or 243.33c below if it can bend at least 1 inch vertically without being damaged and it contains a rigid insert. Exhibit 243.33a Flexibility Test—All Large Envelopes (Flats) *(See examples on Postal Explorer at pe.usps.com—click on* **Federal Register** *Notices in the left frame* .) b. Large envelopes 10 inches or longer that pass the test in 243.33a and contain a rigid insert (see Exhibit 243.33b): 1. Place the piece with the length perpendicular to the edge of a flat surface and extend the piece 5 inches off the surface. 2. Press down on the piece at a point 1 inch from the outer edge, in the center of the piece's width, exerting steady pressure. 3. Turn the piece around and repeat steps 1 and 2. The piece is flexible if both ends can bend at least 2 inches vertically without being damaged. Exhibit 243.33b Flexibility Test—Large Envelopes (Flats) 10 Inches or Longer *(See examples on Postal Explorer at pe.usps.com—click on* **Federal Register** *Notices in the left frame* .) c. Large envelopes less than 10 inches long that pass the test in 243.33a and contain a rigid insert (see Exhibit 243.33c): 1. Place the piece with the length perpendicular to the edge of a flat surface and extend the piece one-half of its length off the surface. 2. Press down on the piece at a point 1 inch from the outer edge, in the center of the piece's width, exerting steady pressure. 3. Turn the piece around and repeat steps 1 and 2. The piece is flexible if both ends can bend at least 1 inch vertically without being damaged. Exhibit 243.33c Flexibility Test—Large Envelopes (Flats) Less Than 10 Inches Long ( *See examples on Postal Explorer at pe.usps.com—click on* **Federal Register** *Notices in the left frame* .) 243.34 Uniform Thickness Large envelopes (Flats) must be uniformly thick so that any bumps, protrusions, or other irregularities do not cause more than 1/4 -inch variance in thickness. When determining variance in thickness, exclude the outside edges of a mailpiece (1 inch from each edge) when the contents do not extend into those edges. Also, exclude the selvage of any polywrap covering from this determination. Mailers must secure nonpaper contents to prevent shifting of more than 2 inches within the mailpiece if shifting would cause the piece to be nonuniform in thickness or would result in the contents bursting out of the mailpiece. 243.4 Packages (Small Packets) 243.41 Weight Limit The weight limit is 4 pounds. 243.42 Dimensions Packages (small packets) must be within the following dimensions: a. Maximum length: 24 inches. Length is the longest dimension. b. Maximum length, height, and depth (thickness) combined: 36 inches. c. Minimum size: Large enough to accommodate the postage, address, customs form, and other required elements on the address side. 243.43 Rolls 243.431 Weight Limit The weight limit is 4 pounds. 243.432 Dimensions Rolls must be within the following dimensions: a. Minimum length: 4 inches. b. Minimum length plus twice the diameter combined: 6 3/4 inches. c. Maximum length: 36 inches. d. Maximum length plus twice the diameter combined: 42 inches. 244 Mail Preparation 244.2 Marking *[Revise item “a” as follows:]* a. First-Class Mail International packages (small packets) and rolls, which because of their size, shape, or configuration might be mistaken for another category of international mail, should be marked “LETTER-POST” on the address side of the mailpiece. *[Delete item “d” in its entirety]* 244.4 Packaging *[Renumber 244.4a-d as 244.4c-f. Add new 244.4a and 244.4b as follows:]* a. Mailers must package mailpieces to withstand normal transit and handling without content or package breakage, injury to USPS employees, or damage to other mail or USPS equipment. b. Mailers must package their contents to prevent their deterioration. *[Revise renumbered 244.4f as follows:]* f. First-Class Mail International items, in card form, are permitted, so long as their overall dimensions do not exceed 4 3/4 inches or 9 1/4 inches. See 243.144. 250 Reserved *[Add new section after 943.2 and before World Map as follows:]* Country Rate Groups and Weight Limits Country 1 GXG rate group 5 1 GXG max wt. lbs. 2 PMI rate group 5 2 PMI max wt. lbs. 2 PMI flat-rate box max wt. lbs. 3 EMI rate group 5 3 EMI max wt. lbs. 4 FCMI rate group 5 4 FCMI letters max wt. oz. 4 FCMI letters max wt. lbs. 4 FCMI letters max wt. lbs. Afghanistan 6 70 6 66 20 0 0 6 3.5 4 4 Albania 4 70 4 44 20 4 66 4 3.5 4 4 Algeria 0 0 8 44 20 8 44 8 3.5 4 4 Andorra 5 70 5 66 20 5 66 5 3.5 4 4 Angola 4 70 7 44 20 7 44 7 3.5 4 4 Anguilla 7 70 9 22 20 9 55 9 3.5 4 4 Antigua and Barbuda 7 70 9 22 20 0 0 9 3.5 4 4 Argentina 8 70 9 44 20 9 44 9 3.5 4 4 Armenia 4 70 4 44 20 4 44 4 3.5 4 4 Aruba 7 70 9 44 20 9 44 9 3.5 4 4 Ascension 0 0 0 0 0 0 0 7 3.5 4 4 Australia 6 70 3 66 20 3 44 3 3.5 4 4 Austria 5 70 5 66 20 5 70 5 3.5 4 4 Azerbaijan 4 70 4 70 20 4 70 4 3.5 4 4 Bahamas 7 70 9 22 20 9 22 9 3.5 4 4 Bahrain 6 70 8 44 20 8 44 8 3.5 4 4 Bangladesh 6 70 6 44 20 6 44 6 3.5 4 4 Barbados 7 70 9 44 20 9 66 9 3.5 4 4 Belarus 4 70 4 66 20 4 44 4 3.5 4 4 Belgium 3 70 5 66 20 5 66 5 3.5 4 4 Belize 8 70 9 44 20 9 66 9 3.5 4 4 Benin 4 70 7 66 20 7 66 7 3.5 4 4 Bermuda 7 70 9 44 20 9 44 9 3.5 4 4 Bhutan 6 70 6 66 20 6 66 6 3.5 4 4 Bolivia 8 70 9 70 20 9 66 9 3.5 4 4 Bosnia-Herzegovina 4 70 4 44 20 4 66 4 3.5 4 4 Botswana 4 70 7 66 20 7 66 7 3.5 4 4 Brazil 8 70 9 66 20 9 66 9 3.5 4 4 British Virgin Islands 7 70 9 44 20 0 0 9 3.5 4 4 Brunei Darussalam 4 70 6 44 20 6 66 6 3.5 4 4 Bulgaria 4 70 4 70 20 4 66 4 3.5 4 4 Burkina Faso 4 70 7 66 20 7 70 7 3.5 4 4 Burma 0 0 6 22 20 0 0 6 3.5 4 4 Burundi 4 70 7 66 20 7 66 7 3.5 4 4 Cambodia 8 70 6 66 20 6 66 6 3.5 4 4 Cameroon 4 70 7 66 20 7 44 7 3.5 4 4 Canada 1 70 1 66 20 1 66 1 3.5 4 4 Cape Verde 4 70 7 44 20 7 66 7 3.5 4 4 Cayman Islands 7 70 9 44 20 9 44 9 3.5 4 4 Central African Republic 0 0 7 66 20 7 66 7 3.5 4 4 Chad 4 70 7 44 20 7 66 7 3.5 4 4 Chile 8 70 9 44 20 9 66 9 3.5 4 4 China 6 70 3 66 20 3 66 3 3.5 4 4 Colombia 8 70 9 66 20 9 44 9 3.5 4 4 Comoros 0 0 7 44 20 0 0 7 3.5 4 4 Congo (Brazzaville) Republic of the 4 70 7 44 20 7 66 7 3.5 4 4 Congo, Democratic Republic of the 4 70 7 66 20 7 66 7 3.5 4 4 Costa Rica 8 70 9 66 20 9 66 9 3.5 4 4 Cote d Ivoire (Ivory Coast) 4 70 7 66 20 7 66 7 3.5 4 4 Croatia 4 70 4 66 20 4 66 4 3.5 4 4 Cuba 0 0 0 0 0 0 0 9 3.5 4 4 Cyprus 6 70 4 70 20 4 70 4 3.5 4 4 Czech Republic 4 70 4 66 20 4 66 4 3.5 4 4 Denmark 5 70 5 66 20 5 66 5 3.5 4 4 Djibouti 4 70 7 44 20 7 44 7 3.5 4 4 Dominica 7 70 9 44 20 9 44 9 3.5 4 4 Dominican Republic 7 70 9 44 20 9 66 9 3.5 4 4 Ecuador 8 70 9 66 20 9 66 9 3.5 4 4 Egypt 6 70 8 66 20 8 44 8 3.5 4 4 El Salvador 8 70 9 44 20 9 66 9 3.5 4 4 Equatorial Guinea 4 70 7 22 20 7 44 7 3.5 4 4 Eritrea 4 70 7 44 20 7 66 7 3.5 4 4 Estonia 4 70 4 70 20 4 66 4 3.5 4 4 Ethiopia 4 70 8 66 20 8 66 8 3.5 4 4 Falkland Islands 0 0 0 0 0 0 0 9 3.5 4 4 Faroe Islands 5 70 5 70 20 5 44 5 3.5 4 4 Fiji 8 70 6 44 20 6 66 6 3.5 4 4 Finland 5 70 5 70 20 5 66 5 3.5 4 4 France 3 70 5 66 20 5 66 5 3.5 4 4 French Guiana 8 70 9 66 20 9 66 9 3.5 4 4 French Polynesia 4 70 6 66 20 6 66 6 3.5 4 4 Gabon 4 70 7 44 20 7 66 7 3.5 4 4 Gambia 4 70 7 66 20 0 0 7 3.5 4 4 Georgia, Republic of 4 70 4 44 20 4 66 4 3.5 4 4 Germany 3 70 5 70 20 5 66 5 3.5 4 4 Ghana 4 70 7 66 20 7 66 7 3.5 4 4 Gibraltar 4 70 5 44 20 0 0 5 3.5 4 4 Great Britain and Northern Ireland 3 70 5 66 20 5 66 5 3.5 4 4 Greece 5 70 5 44 20 5 66 5 3.5 4 4 Greenland 5 70 5 66 20 0 0 5 3.5 4 4 Grenada 7 70 9 44 20 9 66 9 3.5 4 4 Guadeloupe 7 70 9 66 20 9 66 9 3.5 4 4 Guatemala 8 70 9 44 20 9 66 9 3.5 4 4 Guinea 4 70 7 66 20 7 44 7 3.5 4 4 Guinea-Bissau 0 0 7 66 20 7 44 7 3.5 4 4 Guyana 8 70 9 44 20 9 66 9 3.5 4 4 Haiti 7 70 9 55 20 9 66 9 3.5 4 4 Honduras 8 70 9 44 20 9 44 9 3.5 4 4 Hong Kong 3 70 3 66 20 3 66 3 3.5 4 4 Hungary 4 70 4 44 20 4 66 4 3.5 4 4 Iceland 5 70 5 70 20 5 66 5 3.5 4 4 India 6 70 6 44 20 6 70 6 3.5 4 4 Indonesia 6 70 6 44 20 6 66 6 3.5 4 4 Iran 0 0 8 44 0 0 0 8 3.5 4 4 Iraq 6 70 8 44 20 8 44 8 3.5 4 4 Ireland 3 70 5 66 20 5 66 5 3.5 4 4 Israel 6 70 8 44 20 8 44 8 3.5 4 4 Italy 3 70 5 66 20 5 66 5 3.5 4 4 Jamaica 7 70 9 22 20 9 66 9 3.5 4 4 Japan 3 70 3 66 20 3 66 3 3.5 4 4 Jordan 6 70 8 66 20 8 66 8 3.5 4 4 Kazakhstan 4 70 6 44 20 6 66 6 3.5 4 4 Kenya 4 70 7 70 20 7 70 7 3.5 4 4 Kiribati 0 0 6 44 20 0 0 6 3.5 4 4 Korea, Democratic Peoples Republic of (North Korea) 0 0 0 0 0 0 0 6 3.5 4 4 Korea, Republic of (South Korea) 6 70 3 44 20 3 66 3 3.5 4 4 Kuwait 6 70 8 66 20 8 66 8 3.5 4 4 Kyrgyzstan 4 70 6 44 20 6 66 6 3.5 4 4 Laos 8 70 6 44 20 6 66 6 3.5 4 4 Latvia 4 70 4 70 20 4 66 4 3.5 4 4 Lebanon 6 70 8 66 20 0 0 8 3.5 4 4 Lesotho 4 70 7 44 20 7 66 7 3.5 4 4 Liberia 4 70 7 44 20 7 44 7 3.5 4 4 Libya 0 0 8 44 20 0 0 8 3.5 4 4 Liechtenstein 5 70 5 66 20 5 66 5 3.5 4 4 Lithuania 4 70 4 70 20 4 70 4 3.5 4 4 Luxembourg 3 70 5 66 20 5 66 5 3.5 4 4 Macao 3 70 6 70 20 6 70 6 3.5 4 4 Macedonia, Republic of 4 70 4 70 20 4 66 4 3.5 4 4 Madagascar 4 70 7 44 20 7 66 7 3.5 4 4 Malawi 4 70 7 66 20 7 44 7 3.5 4 4 Malaysia 6 70 6 66 20 6 66 6 3.5 4 4 Maldives 6 70 6 66 20 6 66 6 3.5 4 4 Mali 4 70 7 66 20 7 66 7 3.5 4 4 Malta 5 70 5 66 20 5 44 5 3.5 4 4 Martinique 7 70 9 66 20 9 66 9 3.5 4 4 Mauritania 4 70 7 44 20 7 66 7 3.5 4 4 Mauritius 4 70 7 44 20 7 66 7 3.5 4 4 Mexico 2 70 2 44 20 2 44 2 3.5 4 4 Moldova 4 70 4 70 20 4 70 4 3.5 4 4 Mongolia 4 70 6 66 20 6 66 6 3.5 4 4 Montserrat 7 70 9 44 20 0 0 9 3.5 4 4 Morocco 4 70 8 66 20 8 68 8 3.5 4 4 Mozambique 4 70 7 66 20 7 66 7 3.5 4 4 Namibia 4 70 7 44 20 7 22 7 3.5 4 4 Nauru 0 0 6 44 20 6 44 6 3.5 4 4 Nepal 6 70 6 44 20 6 69 6 3.5 4 4 Netherlands 3 70 5 44 20 5 66 5 3.5 4 4 Netherlands Antilles 7 70 9 44 20 9 66 9 3.5 4 4 New Caledonia 8 70 6 66 20 6 66 6 3.5 4 4 New Zealand 6 70 6 66 20 6 66 6 3.5 4 4 Nicaragua 8 70 9 66 20 9 55 9 3.5 4 4 Niger 4 70 7 70 20 7 70 7 3.5 4 4 Nigeria 4 70 7 66 20 7 66 7 3.5 4 4 Norway 5 70 5 66 20 5 66 5 3.5 4 4 Oman 6 70 8 44 20 8 66 8 3.5 4 4 Pakistan 6 70 6 70 20 6 66 6 3.5 4 4 Panama 8 70 9 70 20 9 66 9 3.5 4 4 Papua New Guinea 8 70 6 44 20 6 55 6 3.5 4 4 Paraguay 8 70 9 66 20 9 55 9 3.5 4 4 Peru 8 70 9 70 20 9 70 9 3.5 4 4 Philippines 6 70 6 44 20 6 44 6 3.5 4 4 Pitcairn Island 0 0 6 22 20 0 0 6 3.5 4 4 Poland 4 70 4 44 20 4 44 4 3.5 4 4 Portugal 5 70 5 66 20 5 66 5 3.5 4 4 Qatar 6 70 8 70 20 8 66 8 3.5 4 4 Reunion 4 70 9 66 20 0 0 9 3.5 4 4 Romania 4 70 4 70 20 4 70 4 3.5 4 4 Russia 4 70 4 44 20 4 66 4 3.5 4 4 Rwanda 4 70 7 66 20 7 66 7 3.5 4 4 Saint Christopher and Nevis 7 70 9 44 20 9 66 9 3.5 4 4 Saint Helena 0 0 7 44 20 0 0 7 3.5 4 4 Saint Lucia 7 70 9 44 20 9 44 9 3.5 4 4 Saint Pierre and Miquelon 0 0 4 66 20 0 0 4 3.5 4 4 Saint Vincent and the Grenadines 7 70 9 22 20 9 44 9 3.5 4 4 San Marino 3 70 5 66 20 5 66 5 3.5 4 4 Sao Tome and Principe 0 0 7 44 20 0 0 7 3.5 4 4 Saudi Arabia 4 70 8 66 20 8 66 8 3.5 4 4 Senegal 4 70 7 66 20 7 66 7 3.5 4 4 Serbia-Montenegro 4 0 5 70 20 5 66 5 3.5 4 4 Seychelles 4 70 7 70 20 7 66 7 3.5 4 4 Sierra Leone 0 0 7 66 20 7 66 7 3.5 4 4 Singapore 3 70 6 66 20 6 66 6 3.5 4 4 Slovak Republic 4 70 5 66 20 5 66 5 3.5 4 4 Slovenia 4 70 5 66 20 5 66 5 3.5 4 4 Solomon Islands 0 0 6 44 20 6 66 6 3.5 4 4 Somalia 0 0 0 0 0 0 0 0 0 0 0 South Africa 4 70 7 66 20 7 66 7 3.5 4 4 Spain 5 70 5 44 20 5 66 5 3.5 4 4 Sri Lanka 6 70 6 66 20 6 66 6 3.5 4 4 Sudan 0 0 7 44 20 7 66 7 3.5 4 4 Suriname 8 70 9 44 20 0 0 9 3.5 4 4 Swaziland 4 70 7 44 20 7 66 7 3.5 4 4 Sweden 5 70 5 66 20 5 66 5 3.5 4 4 Switzerland 5 70 5 66 20 5 66 5 3.5 4 4 Syrian Arab Republic 6 70 8 70 20 8 44 8 3.5 4 4 Taiwan 3 70 6 44 20 6 33 6 3.5 4 4 Tajikistan 0 0 6 66 20 6 66 6 3.5 4 4 Tanzania 4 70 7 66 20 7 66 7 3.5 4 4 Thailand 6 70 6 66 20 6 66 6 3.5 4 4 Togo 4 70 7 70 20 7 66 7 3.5 4 4 Tonga 0 0 6 44 20 0 0 6 3.5 4 4 Trinidad and Tobago 7 70 9 44 20 9 66 9 3.5 4 4 Tristan da Cunha 0 0 7 22 20 0 0 7 3.5 4 4 Tunisia 4 70 8 66 20 8 66 8 3.5 4 4 Turkey 6 70 4 66 20 4 66 4 3.5 4 4 Turkmenistan 4 70 6 44 20 6 66 6 3.5 4 4 Turks and Caicos Islands 7 70 9 44 20 9 66 9 3.5 4 4 Tuvalu 0 0 6 55 20 0 0 6 3.5 4 4 Uganda 4 70 7 66 20 7 66 7 3.5 4 4 Ukraine 4 70 4 66 20 4 44 4 3.5 4 4 United Arab Emirates 6 70 8 70 20 8 70 8 3.5 4 4 Uruguay 8 70 9 66 20 9 44 9 3.5 4 4 Uzbekistan 4 70 6 70 20 6 66 6 3.5 4 4 Vanuatu 8 70 6 44 20 6 55 6 3.5 4 4 Vatican City 3 70 5 44 20 5 66 5 3.5 4 4 Venezuela 8 70 9 66 20 9 66 9 3.5 4 4 Vietnam 6 70 6 70 20 6 66 6 3.5 4 4 Wallis and Futuna Islands 4 70 6 66 20 0 0 6 3.5 4 4 Western Samoa 0 0 6 44 20 6 44 6 3.5 4 4 Yemen 6 70 8 66 20 8 66 8 3.5 4 4 Zambia 4 70 7 66 20 7 66 7 3.5 4 4 Zimbabwe 4 70 7 44 20 7 44 7 3.5 4 4 1 GXG = Global Express Guaranteed. 2 PMI = Priority Mail International. 3 EMI = Express Mail International. 4 FCMI = First-Class Mail International. 5 Zero
(0)= Service is not available. Individual Country Listings *[For every country that First-Class Mail International is available, revise the First-Class Mail International section as follows:]* Country Conditions for Mailing First-Class Mail International *[Replace current price table with new price tables for letters, large envelopes (flats) and packages (small packets) based on country's First-Class Mail International rate group.]* Neva R. Watson, Attorney, Legislative. [FR Doc. E8-2920 Filed 2-19-08; 8:45 am] BILLING CODE 7710-12-P POSTAL SERVICE 39 CFR Part 111 Periodicals—Limited Circulation Rate AGENCY: Postal Service TM . ACTION: Final rule. SUMMARY: This final rule revises the *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM®) to provide the eligibility standards for the Outside-County Limited Circulation rate that has been approved by the Governors of the United States Postal Service. Eligible issues of publications entitled to use this rate will receive a 5% discount on qualifying Outside-County copies. As set forth in the new standards, publications in each of the qualification categories may be eligible for the rate; issues of these publications will qualify if eligible copies are mailed at In-County rates and the total number of Outside-County copies mailed for that issue is less than 5,000. DATES: *Effective Date:* May 12, 2008. FOR FURTHER INFORMATION CONTACT: Jerry Lease, 202-268-7264, or Sue Thomas, 202-268-7268, United States Postal Service. SUPPLEMENTARY INFORMATION: Section 1003 of the Postal Accountability and Enhancement Act, Public Law No. 109-435, 120 Stat. 3198, requires the Postal Service to establish, in accordance with the procedures in 39 U.S.C. 3622, a reduced rate of postage for certain copies of publications with at least one copy mailed at In-County rates, and less than 5,000 copies mailed to addresses outside of the county in which copies are eligible to be mailed at In-County rates. Publications in each qualification category may be eligible for the discount. Although the literal language of the statute does not appear to cover Requester publications, other parts of the statute allow Requester publications to qualify for Nonprofit, Classroom, and other preferred Periodicals rates and it appears consistent with the spirit of the law to allow them to qualify for the Limited Circulation rate as well. In order to do so, the new standards provide that circulation limits apply to paid and requester circulation, depending upon the qualification category of the publication. The discount does not apply to commingled nonsubscriber or nonrequester copies in excess of the 10% allowance in DMM 707.7, Nonprofit Periodicals, Classroom Periodicals, and Limited Circulation Science-of-Agriculture Periodicals publications. Limited Circulation Science-of-Agriculture publications receive a similar reduced rate of postage when also meeting the requirements of DMM 707.11.2.2. The eligibility test established by the statute considers the outside county circulation of the issue. Accordingly, whether individual copies of a publication within one of the eligible qualification categories can utilize the discount must be determined on an issue-by-issue basis. The Postal Service adopts the following changes to the *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), which is incorporated by reference in the Code of Federal Regulations. See 39 CFR Part 111. List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Postal Service. Accordingly, 39 CFR part 111 is amended as follows: PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows; Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001. 2. Revise the following sections of the *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), as follows: 700 Special Standards 707 Periodicals 707.0 Rates and Fees 1.0 Rates and Fees 1.1 Outside-County—Including Science-of-Agriculture *[Revise 1.1.1 to incorporate the 5% discount for Limited Circulation rates and Limited Circulation Science-of-Agriculture rates as follow:]* 1.1.1 Pound Rates Per pound or fraction: Preferred Rate Discounts: Authorized Nonprofit and Classroom mailers, and publications that meet the standards for Limited Circulation publications and Limited Circulation Science-of-Agriculture publications receive a discount of 5% off the total Outside-County postage excluding the postage for advertising pounds. The 5% discount does not apply to commingled nonsubscriber or nonrequester copies in excess of the 10% allowance in DMM 707.7. *[Add new 1.1.8, and 1.1.9 as follows:]* 1.1.8 Limited Circulation Publications Publications, excluding Nonprofit, Classroom, and Limited Circulation Science-of-Agriculture publications receive a 5% discount off the total Outside-County postage, excluding the postage for advertising pounds, if eligible copies are mailed at In-County rates and the total number of Outside-County copies mailed for that issue is less than 5,000. Nonsubscriber or nonrequester copies claiming the Limited Circulation discount are subject to the standards in 7.0. 1.1.9 Limited Circulation Science-of-Agriculture Publications Publications meeting the requirements of 11.2.2 receive a 5% discount off the total Outside-County postage, excluding the postage for advertising pounds, if eligible copies are mailed at In-County rates and the total number of Outside-County copies mailed for that issue is less than 5,000. Nonsubscriber copies claiming the Limited Circulation discount are subject to the standards in 7.0. 7.0 Mailing to Nonsubscribers or Nonrequesters *[Revise 7.9.3 to incorporate provisions limiting the number of nonsubscriber or nonrequester copies that may be mailed at the new Limited Circulation and Limited Circulation Science-of-Agriculture rates as follows:]* 7.9.3 Preferred Rates For In-County rates, Nonprofit, Classroom, Science-of-Agriculture, Limited Circulation, and Limited Circulation Science-of-Agriculture publications, nonsubscriber (for Periodicals except requester publications) or nonrequester (for requester publications) copies up to 10% of the total number of copies mailed to subscribers or requesters during the calendar year may be mailed at the applicable Preferred rates or Preferred rate discount, provided that the nonsubscriber or nonrequester copies would qualify as Preferred rate or Preferred rate discount publications if mailed to subscribers or requesters and if the copies are presorted under applicable standards. Nonsubscriber or nonrequester copies mailed over the 10% limit are not eligible for Preferred rates or the Preferred rate discount. To qualify for regular Outside-County rates, the nonsubscriber or nonrequester copies over the 10% limit must be part of a presorted, commingled mailing (one that includes subscriber or requester copies). Subject to 11.3, nonsubscriber or nonrequester copies may be mailed at In-County rates up to a 10% limit of the total number of subscriber or requester copies of the publication mailed at In-County rates during the calendar year. Once the 10% calendar year limit is exceeded for the number of nonsubscriber or nonrequester copies that may be mailed at Preferred rates or the Preferred rate discount, the nonsubscriber or nonrequester copies may not then be mailed at In-County rates even if the 10% limit separately applied to those rates is not exceeded. 11.0 Basic Rate Eligibility 11.1 Outside-County Rates *[Add new 11.1.4 as follows:]* 11.1.4 Limited Circulation Discount Publications, excluding Nonprofit, Classroom, and Limited Circulation Science-of-Agriculture publications, receive a 5% discount off the total Outside-County postage, excluding the postage for advertising pounds, if eligible copies are mailed at In-County rates and the total number of Outside-County copies mailed for that issue is less than 5,000. Nonsubscriber or nonrequester copies claiming the Limited Circulation discount are subject to the standards in 7.0. 11.2 Outside-County Science-of-Agriculture Rates *[Revise the first sentence in 11.2.2 to include the words “or requesters” as follows:]* 11.2.2 General Science-of-Agriculture rates apply to Outside-County copies of authorized Periodicals publications mailed by publishers or news agents when the total copies provided during any 12-month period to subscribers or requesters residing in rural areas are at least 70% of the total number of copies distributed by any means for any purpose. *[Revise heading and text of 11.2.3 as follows:]* 11.2.3 Limited Circulation Science-of-Agriculture Discount Publications meeting the requirements of 11.2.2, receive a 5% discount off the total Outside-County postage, excluding the postage for advertising pounds, if eligible copies are mailed at In-County rates and the total number of Outside-County copies mailed for that issue is less than 5,000. Nonsubscriber or nonrequester copies claiming the Limited Circulation Science-of-Agriculture discount are subject to the standards in 7.0. Neva R. Watson, Attorney, Legislative. [FR Doc. E8-2921 Filed 2-19-08; 8:45 am] BILLING CODE 7710-12-P POSTAL SERVICE 39 CFR Part 111 Premium Forwarding Service AGENCY: Postal Service TM . ACTION: Final rule. SUMMARY: This final rule revises *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM®) to make Premium Forwarding Service
(PFS)a permanent mail classification. There are no major changes in the permanent PFS classification compared with the experimental service offering. DATES: *Effective Date:* March 2, 2008. FOR FURTHER INFORMATION CONTACT: Laraine Hope at 202-268-2138 or Garry Rodriguez at 202-268-7281. SUPPLEMENTARY INFORMATION: The Postal Service published a final rule in the **Federal Register** on June 10, 2005 (70 FR 33836), introducing a new service called Premium Forwarding Service (PFS). PFS is a personalized service for reshipping mail from a customer's primary mailing address to a temporary address on a weekly basis using Priority Mail®. With PFS, the Postal Service reships mail to customers who are away for at least two weeks and up to one year. The Postal Service filed a Request for a Recommended Decision with the Postal Regulatory Commission on July 31, 2007, to make the experimental classification permanent. On January 7, 2008, the Postal Regulatory Commission issued its Recommended Decision that PFS become a permanent service offering (Docket No. MC2007-3). The Governors accepted that recommendation and the Board of Governors
(BOG)of the Postal Service, in Resolution 08-1 (January 24, 2008), directed implementation of PFS as a permanent mail classification on March 2, 2008. PFS will be a permanent classification effective March 2, 2008. There are no major changes in the permanent PFS classification compared with the experimental service offering. There were two minor changes made to the DMM language. The name of the fee charged to customers when they apply to use PFS is now referred to as an “application fee” for consistency. Also, the references to oversized parcels in renumbered sections 3.3.7 (formerly 709.4.3.7) and 3.4.1 (formerly 709.4.4.1) were removed due to redundancy. Although the references to oversized parcels have been removed from the aforementioned sections, any oversized parcel not requiring a scan or signature or arriving postage due at the primary address is still charged the appropriate oversized Parcel Post® rate. The Postal Service adopts the following changes to *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), which is incorporated by reference in the *Code of Federal Regulations.* See 39 CFR 111.1. List of Subjects in 39 CFR Part 111 Administrative practice and procedures, Postal Service. Accordingly, 39 CFR part 111 is amended as follows: PART 111—[AMENDED] 1. The authority citation for 39 CFR Part 111 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001. 2. Revise the following sections of *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), as follows: 500 Additional Mailing Services 507 Mailer Services *[Renumber 3.0 through 12.0 as 4.0 through 13.0. Add new 3.0, Premium Forwarding Service, as follows:]* 3.0 Premium Forwarding Service 3.1 Rates and Fees 3.1.1 Application Fee Customers must pay a $10.00 nonrefundable application fee. 3.1.2 Weekly Reshipment Charge The reshipment charge for each Priority Mail shipment to one temporary address is $11.95 for each week of service requested. The amount due for the total weeks requested must be paid in full at the time the application is received. 3.1.3 Extension of Service A Premium Forwarding Service
(PFS)customer may contact the post office responsible for delivery to the primary address prior to the last shipment date and extend PFS service (up to 1 year maximum service from the initial start date) as needed. An extension is processed only after the post office receives payment of the reshipment charges due for the total weeks of extension requested. 3.1.4 Early Termination of Service A customer who terminates PFS early (e.g., a customer prepays for 10 weeks but returns to a primary address after 8 weeks, either temporarily or permanently) may request a refund for any unused weekly shipment charges from the post office serving the primary address. The application fee is nonrefundable. 3.2 Basic Standards 3.2.1 Description Premium Forwarding Service
(PFS)provides residential delivery customers and certain post office box customers an option to have all mail addressed to their primary address reshipped or rerouted to a temporary address, mainly by means of a weekly Priority Mail shipment. PFS is available for a period of not less than 2 weeks and not more than 1 year. This optional service is separate from the piece-by-piece forwarding service offered in 2.0, whereby only certain mailpieces are forwarded. 3.2.2 Use Participation in PFS is subject to the following standards: a. PFS is available to residential delivery customers and to post office box customers with a size-one or size-two post office box. b. A customer must submit a completed PFS application, Form 8176, *Premium Forwarding Service
(PFS)Application* , as specified by the Postal Service. The application fee and weekly reshipment charges for the full duration of the requested service must accompany the application. c. Except as provided in 3.2.2d, customers must designate on the application whether the order is for an “Individual” or an “Entire Household.” d. For customers whose primary address is a post office box, only the box customer is authorized to initiate the application and “Entire Household” must be designated on the application. e. PFS is available for a period of not less than 2 weeks and not more than 1 year. f. PFS is available only from and to domestic addresses. g. PFS is available to, but not from, single-point central delivery addresses such as RV parks, hospitals, hotels, and U.S. Department of State addresses. See 703.3.0 for additional U.S. Department of State requirements. 3.2.3 Prohibited Use PFS cannot be combined with any ancillary or extra services beyond those purchased by the original sender. In addition, PFS is not available for: a. Customers who have an active temporary or permanent change-of-address (COA). b. Customers who have an active Hold Mail Authorization (PS Form 8076). Mail that has previously been held at the primary address post office cannot be included in PFS reshipments to a customer's temporary address. c. Customers whose primary address is a size-three, size-four, or size-five post office box. Residential customers who use these post office box sizes due to the unavailability of smaller boxes may request a waiver of this restriction. d. Customers whose primary address is a business delivery address. e. Customers whose primary address is a central point to which the USPS provides delivery in bulk to a third party, such as a commercial mail receiving agency (CMRA), RV park, trailer park, or hotel. f. Customers whose primary address or temporary address is an APO or FPO. g. Customers whose temporary address is within the 969 3-digit ZIP Code area or is otherwise in a U.S. territory or possession that requires a customs declaration. 3.3 Preparation 3.3.1 Weekly Priority Mail Reshipments Regardless of any mailer's ancillary service endorsement on a mailpiece, all mail is reshipped in the weekly Priority Mail shipment, except as specified in 3.3.2 through 3.4.1. 3.3.2 Mailpieces Arriving at the Primary Address Endorsed “Surface Mail Only” or With Other Hazardous Materials Markings Any mailpiece arriving at the primary address that indicates surface only transportation such as Label 127, “Surface Mail Only” or bears other hazardous materials markings such as “Consumer Commodity ORM-D”, cannot be reshipped in the weekly Priority Mail shipment and must be rerouted separately via surface transportation. 3.3.3 Mailpieces Requiring a Scan or Signature at Delivery Mailpieces requiring a scan or signature at delivery, such as Express Mail, Certified Mail, numbered insured mail or mailpieces with Delivery Confirmation, are appropriately scanned, then rerouted immediately and separately to the temporary address, subject to the following: a. Express Mail, Priority Mail, and First-Class Mail are rerouted at no additional charge. b. Standard Mail parcels are separately rerouted postage due at the appropriate 1-pound Parcel Post single-piece rate. c. Package Services mailpieces (Parcel Post, Bound Printed Matter, Media Mail, and Library Mail) are separately rerouted postage due at the appropriate single-piece rate in the subclass in which the mailpiece was originally shipped. For Parcel Select items, the applicable rate is the Parcel Post rate. 3.3.4 Priority Mail Not Requiring a Scan or Signature at Delivery Priority Mail that does not require a scan or signature at delivery is immediately and separately rerouted to the temporary address, unless it will fit into the weekly Priority Mail shipment and such inclusion does not delay its delivery to the temporary address. 3.3.5 Large First-Class Mail and Periodicals Parcels Not Requiring a Scan or Signature at Delivery First-Class Mail and Periodicals parcels (firm bundles) not requiring a scan or signature at delivery and that do not fit into the weekly Priority Mail shipment are separately rerouted at no additional charge. 3.3.6 Standard Mail Parcels Not Requiring a Scan or Signature at Delivery Eligible Standard Mail parcels that do not require a scan or signature at delivery are included in the weekly Priority Mail shipment provided they will fit. Parcels that do not fit or are otherwise ineligible (e.g., mailpieces identified as surface transportation only) are separately rerouted postage due at the appropriate 1-pound Parcel Post single-piece rate. 3.3.7 Package Services Mailpieces Not Requiring a Scan or Signature at Delivery Package Services mailpieces not requiring a scan or signature at delivery are separately rerouted postage due at the appropriate single-piece rate in the subclass in which the mailpiece was originally shipped. For Parcel Select items, the applicable rate is the Parcel Post rate. 3.4 Enter and Deposit 3.4.1 Mailpieces Arriving Postage Due at the Primary Address Any mailpiece arriving postage due at the Post Office serving a customer's primary address is not reshipped in the weekly Priority Mail shipment and will be rerouted individually. Mailpieces arriving postage due are rerouted as follows: a. Postage due First-Class Mail mailpieces are rerouted as First-Class Mail postage due. Only the original postage due amount is collected. There is no additional charge for rerouting the mailpiece. b. Postage due Priority Mail mailpieces are rerouted as Priority Mail postage due. Only the original postage due amount is collected. There is no additional charge for rerouting the mailpiece. c. Postage due Package Services mailpieces are rerouted postage due at the appropriate single-piece rate in the subclass in which the mailpiece was originally shipped. For Parcel Select items, the applicable rate is the Parcel Post rate. The total postage due for Package Services mailpieces is the sum of the postage due at the time of receipt at the primary address plus the postage due for rerouting the mailpiece from the primary post office to the temporary address at the appropriate single-piece rate. 700 Special Standards 709 Experimental Classifications and Rates *[Delete 4.0, Premium Forwarding Service. Premium Forwarding Service becomes a permanent offering in 507.]* An appropriate amendment to 39 CFR part 111 to reflect these changes will be published. Neva Watson, Attorney, Legislative. [FR Doc. E8-2919 Filed 2-19-08; 8:45 am] BILLING CODE 7710-12-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2007-0293; FRL-8529-8] Approval and Promulgation of Air Quality Implementation Plans; Indiana; VOC Emissions From Fuel Grade Ethanol Production Operations AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a March 30, 2007, request from the Indiana Department of Environmental Management
(IDEM)to revise the Indiana State Implementation Plan
(SIP)by adding a volatile organic compound
(VOC)rule for fuel grade ethanol production at dry mills as amendments to 326 IAC 8-5. This rule revision creates an industry-specific Best Available Control Technology
(BACT)standard for new fuel grade ethanol production dry mills that replaces the otherwise required case-by-case SIP BACT determination for new facilities with the potential to emit 25 tons or more of VOC per year. Indiana believes that this rule will increase the clarity, predictability and timeliness of its air permits for this particular group of sources. These rules were proposed for approval on September 13, 2007, and comments were received on October 8, 2007. DATES: This final rule is effective on March 21, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2006-0293. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Steven Rosenthal, Environmental Engineer, at
(312)886-6052 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)886-6052, *rosenthal.steven@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows: I. What Public Comments Were Received on the Proposed Approval and What Is EPA's Response? II. What Action Is EPA Taking and What Is the Reason for This Action? III. Statutory and Executive Order Reviews I. What Public Comments Were Received on the Proposed Approval and What Is EPA's Response? EPA received three comments on its September 13, 2007, proposal from The Natural Resource Group (NRG), as follows: *Comment 1.* NRG is concerned that the amendments do not address technologies other than those specifically identified (i.e., thermal oxidizers, wet scrubbers, and flares). This rule should still allow a dry-mill ethanol plant to perform a case-by-case BACT determination if the facility believes that it has a technology that can achieve low VOC emissions without the additional capital costs and energy use required to control emissions with the technologies identified in the rule. *EPA response 1.* Without this rule, new facilities not regulated by a provision in 326 IAC Article 8 that have potential emissions of 25 tons or more of VOC per year are required to reduce VOC emissions using BACT. Establishing BACT is a case-by-case determination based on the maximum reduction in emissions that is technically feasible, while taking into account energy, environmental, and economic impact. According to Indiana, establishing industry-specific BACT standards in place of case-by-case BACT will improve the clarity, predictability and timeliness of permit decisions involving sources that are currently subject to 326 IAC 8-1-6. NRG's approach would revert this rule to case-by-case BACT determinations for the subject ethanol plants and eliminate its primary purpose. In addition, if a new and superior technology is established for ethanol plants, Indiana has the option of amending this rule to allow such technology. *Comment 2.* NRG stated that the basis for the VOC destruction and concentration is not identified in the rule, and that in order to make a VOC concentration legitimate, there must be a specific test method to determine the concentration. It is, therefore, very important that the rule state a basis for the concentration limit, because the levels identified in the rule are not attainable under some of the potential bases that could be required by IDEM. *EPA response 2.* EPA agrees with NRG that a specific test method is needed to implement the 10 ppm and 20 ppm alternative control requirements for thermal oxidizers and wet scrubbers, respectively, in rule 326 IAC 8-5-6. After discussions with EPA, Region 5, in a December 19, 2007, letter from Daniel Murray, Assistant Commissioner for the Office of Air Quality, IDEM stated that it would be acceptable to measure the 10 ppm and 20 ppm concentration limits using EPA Method 25(A), expressed as equivalent ethanol, with the calibration gas being a mixture of ethanol in air. *Comment 3* . NRG also noted that the rule currently excludes wet-mill ethanol plants that steep or soak the corn in order to separate the kernel, presumably because the emission characteristics for such facilities are different from dry-mill ethanol plants and require case-by-case determinations. According to NRG, however, technologies are currently in development that may allow dry-mill ethanol plants to separate the kernel without using a wet process. This technology has the potential to reduce the VOC emissions from the spent grain dryers due to the potential reduction in spent grain throughput. The emissions from dry-mill ethanol plants with dry kernel separation technology may be comparable to that of wet-mill ethanol plant dryers with one key difference; dry-mill plants will only dry the spent grain while the other parts of the kernel that are removed prior to fermentation can be further processed or shipped without drying. For this reason, NRG believes that this rule should also exclude dry-mill ethanol plants that use dry separation technologies. *EPA response 3* . The definition in 326 IAC 8-5-6(b)(1) of “Dry mill” is “an ethanol production operation that uses the whole corn kernel to produce a meal that is then used to produce alcohol * * *.” Because 326 IAC 8-5 does not cover dry-mill ethanol plants with dry kernel separation technology, NRG's concerns have been addressed. II. What Action Is EPA Taking and What Is the Reason for This Action? We are approving revisions to the Indiana SIP in two areas:
(1)To amend 326 IAC 8-5-1, Applicability of Rule; and
(2)to add 326 IAC 8-5-6, Fuel Grade Ethanol Facilities. It should be noted that approval of this rule does not in any way affect the applicability of Nonattainment New Source Review or Prevention of Significant Deterioration to subject sources. III. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). Regulatory Flexibility Act This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Unfunded Mandates Reform Act Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. National Technology Transfer Advancement Act In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under Section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 21, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( *See* Section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: February 5, 2008. Bharat Mathur, Acting Regional Administrator, Region 5. For the reasons stated in the preamble, part 52, chapter I, of title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart P—Indiana 2. Section 52.770 is amended by adding paragraph (c)(182) to read as follows: § 52.770 Identification of plan.
(c)* * *
(182)On March 30, 2007, Indiana submitted final adopted revisions, which amend 326 IAC 8-5-1, concerning rule applicability, and add 326 IAC 8-5-6, fuel grade ethanol production at dry mills, to its VOC rules as a requested revision to the Indiana state implementation plan. By letter of December 19, 2007, Indiana stated that it would be acceptable to measure the concentration limits in 326 IAC 8-5-6 using EPA Method 25(a) expressed as equivalent ethanol with the calibration gas being a mixture of ethanol in air. EPA is approving these revisions, authorizing Indiana to establish an industry-specific State BACT standard for fuel grade ethanol production at dry mill facilities that emit 25 tons or more of VOC per year.
(i)*Incorporation by reference* . The following sections of the Indiana Administrative Code
(IAC)are incorporated by reference. 326 IAC 8-5-1, “Applicability of Rule”, and 326 IAC 8-5-6 “Fuel Grade Ethanol Production at Dry Mills”. Approved by the Attorney General February 16, 2007. Approved by the Governor February 16, 2007. Filed with the Publisher February 20, 2007. Published on the Indiana Register Web site March 21, 2007, Document Identification Number (DIN):20070321-IR-326050197FRA. Effective March 22, 2007.
(ii)*Additional materials* . A December 19, 2007, letter from Daniel Murray, Assistant Commissioner of the Indiana Department of Environmental management, Office of Air Quality, which states that it would be acceptable to measure the concentration limits in 326 IAC 8-5-6 using EPA Method 25(a) expressed as equivalent ethanol with the calibration gas being a mixture of ethanol in air. [FR Doc. E8-2893 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2007-0633; A-1-FRL-8517-6] Approval and Promulgation of Air Quality Implementation Plans; Maine; Conformity of General Federal Actions AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: The EPA is approving a State Implementation Plan
(SIP)revision submitted by the State of Maine for the purpose of making the SIP consistent with recent additions to the Federal general conformity regulation. This revision incorporates by reference new definitions and establishes *de minimis* emission levels for fine particular matter (PM 2.5 ) into Maine's existing general conformity criteria and procedures previously approved into the Maine SIP. This action is being taken in accordance with the Clean Air Act. DATES: This direct final rule will be effective April 21, 2008, unless EPA receives adverse comments by March 21, 2008. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R01-OAR-2007-0633 by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: arnold.anne@epa.gov.* 3. *Fax:*
(617)918-0047. 4. *Mail:* “Docket Identification Number EPA-R01-OAR-2007-0633”, Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023. 5. *Hand Delivery or Courier.* Deliver your comments to: Anne Arnold, Manager, Air Quality Planning Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R01-OAR-2007-0633. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through *www.regulations.gov,* or e-mail, information that you consider to be CBI or otherwise protected. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. In addition, copies of the State submittal are also available for public inspection during normal business hours, by appointment at the State Air Agency; the Bureau of Air Quality Control, Department of Environmental Protection, First Floor of the Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017. FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, Air Quality Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, telephone number
(617)918-1668, fax number
(617)918-0668, e-mail *cooke.donald@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Organization of this document. The following outline is provided to aid in locating information in this preamble. I. Background and Purpose II. State Submittal III. Final Action IV. Statutory and Executive Order Reviews I. Background and Purpose Section 176(c) of the Clean Air Act, as amended (the Act), prohibits Federal entities from taking actions in nonattainment or maintenance areas which do not conform to the State implementation plan
(SIP)for the attainment and maintenance of the national ambient air quality standards (NAAQS). Therefore, the purpose of conformity is to:
(1)Ensure Federal activities do not interfere with the emission budgets in the SIPs;
(2)ensure actions do not cause or contribute to new violations; and
(3)ensure attainment and maintenance of the NAAQS. Section 176(c) of the Act also requires the EPA to promulgate criteria and procedures for demonstrating and ensuring conformity of Federal actions to an applicable implementation plan developed pursuant to Section 110 and Part D of the Act. EPA promulgated a final rulemaking on November 30, 1993 consisting of 40 CFR part 93, subpart B “Determining Conformity of General Federal Actions to State or Federal Implementation Plans,” which applied to Federal agencies immediately (hereafter referred to as the General Conformity rule); and 40 CFR part 51, subpart W “Determining conformity of general Federal Actions to State or Federal Implementation Plans” which established requirements for States in submitting SIPs. The general conformity rules, except for the 40 CFR 51.851(a) language requiring State submission of a SIP revision, are repeated at 40 CFR part 93, subpart B. The General Conformity rule establishes the criteria and procedures governing the determination of conformity for all Federal actions, except Federal highway and transit actions. 1 1 Conformity to State or Federal Implementation Plans of transportation plans, programs, and projects which are developed, funded or approved under Title 23 U.S.C. or the Federal Transit Laws are implemented under 40 CFR part 51, subpart T and 40 CFR part 93, subpart A. The General Conformity rule also establishes the criteria for EPA approval of SIPs. See 40 CFR 51.851 and 93.151. These criteria provide that the state provisions must be at least as stringent as the requirements specified in EPA's General Conformity rule, and that they can be more stringent only if they apply equally to Federal and non-Federal entities (§§ 51.851(b)). On October 11, 1996, the State of Maine submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consisted of incorporating by reference 40 CFR 51.850 through 51.860 (with the exception of § 51.851) thereby establishing general conformity criteria and procedures in the Maine SIP no more stringent than the Federal rule and not imposing any additional controls on non-Federal entities. EPA approved Maine's General Conformity SIP through a direct final rule published in the **Federal Register** on September 23, 1997, (62 FR 49608-49611) and effective November 24, 1997. EPA amended the General Conformity rule on July 17, 2006, (71 FR 40420-40427). In the amended rule, EPA revised the tables in subparagraphs (b)(1) and (b)(2) of 40 CFR 51.853 and 40 CFR 93.153 by adding the *de minimis* emission levels for PM 2.5 . The EPA also established 100 tons per year as the *de minimis* emission level for direct PM 2.5 and each of its precursors as defined in revised §§ 51.852 and 93.152. The PM 2.5 precursors for the purposes of general conformity applicability are: volatile organic compounds (VOC's) and ammonia (NH <sup>3</sup> ) emissions, which are only considered PM 2.5 precursors in nonattainment areas where either a State or EPA has made a finding that they significantly contribute to the PM 2.5 problem in a given area or to other downwind air quality concerns; NO <sup>X</sup> emissions, which are considered a PM 2.5 precursor unless the State and EPA make a finding that NO <sup>X</sup> emissions from sources in the State do not significantly contribute to the PM 2.5 problem in a given area or to other downwind air quality concerns; and SO 2 emissions, which are always considered a PM 2.5 precursor. Since EPA did not designate any classifications for the PM 2.5 nonattainment areas under the 1997 National Ambient Air Quality Standards for PM 2.5 , EPA did not establish PM 2.5 *de minimis* emission levels for higher classified nonattainment areas. II. State Submittal On June 29, 2007, the State of Maine submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of incorporating by reference 40 CFR 51.852 (Definitions), and 51.853 (Applicability), of 40 CFR part 51, subpart W, “Determining Conformity of General Federal Actions to State or Federal Implementation Plans,” as amended on July 17, 2006 in the **Federal Register** (71 FR 40420-40426). By incorporating by reference the amended General Conformity rule, Maine's Chapter 141 “Conformity of General Federal Actions,” is no more stringent than the Federal rule and does not impose any additional controls on non-Federal entities. Maine's SIP revision was the subject of a public hearing held on March 1, 2007 in accordance with Federal and state administrative requirements. The Maine Board of Environmental Protection adopted the amendments to “State Chapter 141—Conformity of General Federal Actions,” on April 19, 2007. The Maine Office of the Attorney General certified Chapter 141 as to form and legality on May 7, 2007. EPA determined that the submittal of the Department of Environmental Protection's Chapter 141 “Conformity of General Federal Actions” was administratively and technically complete in a July 26, 2007 completeness letter. III. Final Action EPA is approving Maine's revised Chapter 141 “Conformity of General Federal Actions,” and incorporating this regulation into the Maine SIP. Maine's rule is consistent with the latest Federal General Conformity rule as amended on July 17, 2006. The EPA has evaluated Maine's SIP revision and has determined that the State has fully adopted the provisions of the General Conformity rule set forth at 40 CFR part 51, subpart W. The appropriate public participation and comprehensive interagency consultations have been undertaken during development and adoption of this SIP revision. The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective April 21, 2008 without further notice unless the Agency receives relevant adverse comments by March 21, 2008. If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 21, 2008 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 21, 2008. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: January 9, 2008. Robert W. Varney, Regional Administrator, EPA New England. Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart U—Maine 2. Section 52.1020 is amended by reserving paragraphs (c)(60) and (c)(61) and by adding paragraph (c)(63) to read as follows: § 52.1020 Identification of plan.
(c)* * *
(60)[Reserved]
(61)[Reserved]
(63)Revision to Chapter 141 “Conformity of General Federal Actions,” submitted by the Maine Department of Environmental Protection on June 29, 2007 and effective in the State of Maine on May 21, 2007.
(i)Incorporation by reference.
(A)Chapter 141 “Conformity of General Federal Actions” 1. Definition. Effective in the State of Maine on May 21, 2007.
(ii)Additional Materials.
(A)Chapter 141 “Conformity of General Federal Actions,” 2. Conformity to State and Federal Implementation Plans. The Maine Department of Environmental Protection amended its incorporation-by-reference within Chapter 141.2 to reflect EPA's revision to the Federal General Conformity Rule for fine particulate matter promulgated on July 17, 2006 (71 FR 40420-40427); specifically 40 CFR 51.852 Definitions and 40 CFR 51.853 Applicability. 3. In § 52.1031, Table 52.1031 is amended by adding new entries under the existing state citation Chapter 141: Conformity of General Federal Actions to read as follows: § 52.1031 EPA-approved Maine regulations. Table 52.1031.—EPA-Approved Rules and Regulations State citation Title/subject Date adopted by state Date approved by EPA Federal Register citation 52.1020 * * * * * * * 141 Conformity of General Federal Actions 4/19/07 2/20/08 [Insert Federal Register page number where the document begins] (c)(63) Amendment to incorporate new fine particulate matter provisions. * * * * * * * Note.—1. The regulations are effective statewide unless stated otherwise in comments section. [FR Doc. E8-2884 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 [EPA-R04-OAR-2007-0150-200711(a); FRL-8528-8] Approval and Promulgation of Implementation Plans for Air Quality Planning Purposes; Georgia: Early Progress Plan for the Atlanta 8-Hour Ozone Nonattainment Area AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: On December 31, 2006, the State of Georgia, through the Environmental Protection Division
(EPD)of the Georgia Department of Natural Resources, submitted a voluntary State Implementation Plan
(SIP)revision requesting approval of an Early Progress Plan for the sole purpose of establishing motor vehicle emission budgets (MVEBs) for the Atlanta 8-hour ozone nonattainment area. The Atlanta 8-hour ozone nonattainment area is comprised of the following twenty counties: Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Hall, Henry, Newton, Paulding, Rockdale, Spalding and Walton counties in their entireties (hereafter referred to as the “Atlanta 8-Hour Ozone Area”). EPA is approving Atlanta's Early Progress Plan, including the new regional MVEBs for nitrogen oxides (NO <sup>X</sup> ) and volatile organic compounds
(VOC)for 2006. This approval of the Early Progress Plan for the Atlanta 8-Hour Ozone Area is based on EPA's determination that Georgia has demonstrated that the SIP revision containing these MVEBs, when considered with the emissions from all sources, shows some progress toward attainment from the base year (i.e., 2002) through an interim target year (i.e., 2006). DATES: This direct final rule is effective April 21, 2008 without further notice, unless EPA receives adverse comment by March 21, 2008. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2007-0150, by one of the following methods: a. *www.regulations.gov* : Follow the on-line instructions for submitting comments. b. *E-mail: Benjamin.Lynorae@epa.gov.* c. *Fax:*
(404)562-9019. d. *Mail:* EPA-R04-OAR-2007-0150, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. e. *Hand Delivery or Courier:* Lynorae Benjamin, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R04-OAR-2007-0150. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through *www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Ms. Lynorae Benjamin of the Air Quality Modeling and Transportation Section at the Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. Benjamin's telephone number is
(404)562-9040. She can also be reached via electronic mail at *Benjamin.Lynorae@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Taking? II. What Is the Background for EPA's Action? III. What Are the Regional MVEBs for the Atlanta 8-Hour Ozone Area? IV. What Are the Criteria for Early Progress Plans? V. Why is EPA Taking This Action? VI. What is the Effect of EPA's Action? VII. What is EPA's Analysis of the Request? VIII. What Is the Status of EPA's Adequacy Determination for MVEBs for the Atlanta 8-Hour Ozone Area? IX. Final Actions on Atlanta's Early Progress Plan Including Approval of the 2006 MVEBs X. Statutory and Executive Order Reviews I. What Action Is EPA Taking? EPA is approving Atlanta's Early Progress Plan, including the new regional MVEBs for NO <sup>X</sup> and VOC for 2006. This approval of the Early Progress Plan for the Atlanta 8-Hour Ozone Area is based on EPA's determination that Georgia has demonstrated that the MVEBs are consistent with emissions from all sources in the nonattainment area (when projected from the base to a future year) and are included in a SIP revision showing some progress toward attainment. These regional MVEBs apply to the entire Atlanta 8-Hour Ozone Area. This direct final rulemaking is in response to Georgia's January 12, 2007, SIP submittal, which supersedes Georgia's October 26, 2006, submittal that included a request for parallel processing. 1 This revision is a voluntary SIP revision provided by Georgia for the sole purpose of establishing MVEBs for the purpose of implementing transportation conformity in the Atlanta 8-Hour Ozone Area. This submission is not being evaluated in terms of meeting SIP requirements for an attainment demonstration or rate-of-progress plan which may be required for the Atlanta 8-Hour Ozone Area. 1 Georgia's January 12, 2007, submittal was sent to EPA for approval with a December 31, 2006, cover letter but the SIP submittal is actually dated for January 12, 2007, and thus will be referred to throughout this rulemaking as Georgia's January 12, 2007, SIP submittal. II. What Is the Background for EPA's Action? Ground-level ozone is not emitted directly by sources. Rather, emissions of NO <sup>X</sup> and VOC from sources react in the presence of sunlight to form ground-level ozone. NO <sup>X</sup> and VOC are referred to as precursors of ozone. The Clean Air Act
(CAA)establishes a process for air quality management through the setting of the national ambient air quality standards (NAAQS) to protect public health and welfare. Transportation conformity is a component of the air quality management process that must be implemented in areas that are designated nonattainment or were previously designated nonattainment and are required to develop a CAA section 175A maintenance plan for a NAAQS affected by emissions from motor vehicles. Ozone is one such NAAQS. On April 30, 2004, EPA designated the 20-county Atlanta 8-Hour Ozone Area as a “marginal” 8-hour ozone nonattainment area (see, 69 FR 23857, April 30, 2004). Thirteen counties 2 in the Atlanta 8-Hour Ozone Area were previously designated nonattainment for the 1-hour ozone standard and have 1-hour MVEBs for NO <sup>X</sup> and VOC established in the Georgia SIP. The remaining seven counties 3 of the 20-county Atlanta 8-Hour Ozone Area were designated attainment for the 1-hour ozone standard and as such did not have 1-hour MVEBs for NO <sup>X</sup> and VOC. Consequently, the transportation partners in this Area used a combination of the budget test and the interim 2002 baseline test to demonstrate transportation conformity for the 8-hour ozone standard, as required by the transportation conformity rule at 40 CFR 93.109(e)(2)(iii). Specifically, for the 13-county 1-hour ozone area, the MVEBs in the Georgia SIP for the 1-hour ozone standard were used to demonstrate transportation conformity for the 8-hour ozone standard. For the remaining seven counties, the 2002 baseline test, as agreed to through interagency consultation, was used to demonstrate transportation conformity for the 8-hour ozone standard. Thirteen counties of the Atlanta 8-Hour Ozone Area were within a 1-hour ozone attainment area subject to a CAA section 175A maintenance plan for the 1-hour ozone standard. 2 The Atlanta 1-hour ozone area was comprised of the following thirteen counties: Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale counties in their entireties. 3 The seven additional counties that are included in the 8-hour ozone nonattainment for Atlanta are: Barrow, Bartow, Carroll, Hall, Newton, Spalding and Walton counties in their entireties. On June 8, 2007, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) issued a decision vacating portions of EPA's Phase I 8-Hour Ozone Implementation Rule. This decision does not impact Georgia's request for approval of the voluntary Early Progress Plan. In its June 8th decision, the Court clarified that for areas with 1-hour MVEBs, the transportation conformity rule's requirement to use 1-hour MVEBs for 8-hour conformity determinations until they are replaced by 8-hour budgets fulfills the CAA's anti-backsliding requirements. Consistent with EPA's conformity regulations at 40 CFR Part 93 and prior to EPA's adequacy finding for the 8-hour ozone MVEBs in Atlanta's Early Progress Plan, the Atlanta Regional Commission and the Gainesville-Hall Metropolitan Planning Organization were meeting the requirement to use the 1-hour ozone MVEBs as an interim test for conformity determinations. III. What Are the Regional MVEBs for the Atlanta 8-Hour Ozone Area? Pursuant to the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for ozone nonattainment areas. These control strategy SIPs (e.g., reasonable further progress SIPs and attainment demonstration SIPs) and maintenance plans create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. Pursuant to 40 CFR part 93, an MVEB is required to be established for:
(1)The attainment year for an attainment plan;
(2)the last year of the maintenance plan; or
(3)the target year for a reasonable further progress plan. Additionally, through an Early Progress Plan, a state may voluntarily establish MVEBs for an area so long as these MVEBs are consistent with a demonstration that shows some progress, between a base and future year, towards attainment. The MVEB is the portion of the total allowable emissions in a SIP that is allocated to highway and transit vehicle use and emissions. See, 40 CFR 93.101. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and revise the MVEB. The State of Georgia, after interagency consultation with the transportation partners for the Atlanta 8-Hour Ozone Area, elected to develop regional MVEBs for NO <sup>X</sup> and VOC for this entire area through an Early Progress Plan. The regional MVEBs for the Atlanta 8-Hour Ozone Nonattainment Area are established for the year 2006, and are defined in the table below. Table 1.—Atlanta 8-Hour Ozone Area MVEBs [Tons per day] 2006 NO <sup>X</sup> 306.75 VOC 172.27 Through this rulemaking, EPA is approving the 2006 regional MVEBs for NO <sup>X</sup> and VOC for the Atlanta 8-Hour Ozone Area because EPA has determined that the MVEBs contained in the Early Progress SIP revision are consistent with emissions from all sources within the nonattainment area (when projected from the base to a future year) in showing some progress toward attainment. In a previous action, EPA has already found these MVEBs adequate, so they must be used for future conformity determinations. IV. What Are the Criteria for Early Progress Plans? EPA allows for the establishment of MVEBs for the 8-hour ozone standard prior to a state submitting its first required 8-hour ozone SIP that would include new MVEBs. Although voluntary, these “early” MVEBs must be established through a plan that meets all the requirements of a SIP submittal. This plan is known as the “Early Progress Plan.” Specifically and in reference to Early Progress Plans, the preamble of the July 1, 2004, final transportation conformity rule (see, 69 FR 40019) reads as follows: “The first 8-hour ozone SIP could be a control strategy SIP required by the Clean Air Act (e.g., rate-of-progress SIP or attainment demonstration) or a maintenance plan. However, 8-hour ozone nonattainment areas `are free to establish, through the SIP process, a motor vehicle emissions budget or budgets that addresses the new NAAQS in advance of a complete SIP attainment demonstration. That is, a state could submit a motor vehicle emission budget that does not demonstrate attainment but is consistent with projections and commitments to control measures and achieves some progress toward attainment' (August 15, 1997, 62 FR 43799). A SIP submitted earlier than otherwise required can demonstrate a significant level of emissions reductions from current level of emissions, instead of a specific percentage required by the Clean Air Act for moderate and above ozone areas.” The Early Progress Plan must demonstrate that the SIP revision containing the MVEBs, when considered with emissions from all sources, and when projected from the base year to a future year, show some progress toward attainment. EPA has previously indicated that a 5 percent to 10 percent reduction in emissions from all sources could represent a significant level of emissions reductions from current levels (69 FR 40019). This allowance is provided so that areas have an opportunity to use the budget test to demonstrate conformity as opposed to the interim conformity tests (i.e., 2002 baseline test and/or “build-no greater-than-no build test”) 4 . The budget test with an adequate or approved SIP budget is generally more protective of air quality and provides a more relevant basis for conformity determinations than the interim emissions test. (69 FR 40026). 4 See, EPA's Transportation Conformity Rule at 40 CFR part 93 for more information on the interim tests. It should also be noted that the Early Progress Plan is not a required plan and does not substitute for required submissions such as an attainment demonstration or rate-of-progress plan, if such plans become required for the Atlanta 8-Hour Ozone Area. V. Why Is EPA Taking This Action? On January 16, 2007, EPA received a request to approve the Early Progress Plan for the Atlanta 8-Hour Ozone Area for the sole purpose of establishing 8-hour ozone MVEBs for the entire 20-county 8-hour ozone nonattainment area. EPA's evaluation indicates that Georgia has demonstrated that the MVEBs in the Early Progress Plan are consistent with a demonstration that shows some progress towards attainment of the 8-hour ozone standard. VI. What Is the Effect of EPA's Action? Approval of Atlanta's Early Progress Plan into the Georgia SIP would establish regional 8-hour ozone MVEBs for NO <sup>X</sup> and VOC for the Atlanta 8-Hour Ozone Area. The regional MVEBs for the year 2006 are 306.75 tons per day
(tpd)for NO <sup>X</sup> and 172.27 tpd for VOC. As of April 24, 2007, the effective date of EPA's adequacy finding for these MVEBs, conformity determinations in Atlanta must meet the budget test using these 8-hour MVEBs, instead of the 1-hour ozone MVEBs and 2002 baseline year test. The CAA requires that conformity of the transportation plans and transportation improvement programs be determined within two years of EPA's adequacy finding for MVEBs, or within two years of EPA's approval of the SIP that includes them if the MVEBs have not already been found adequate (see, CAA section 176(c)(2)(E)). Submittal (and consequently approval) of Atlanta's Early Progress Plan does not satisfy the requirement for Georgia to provide a full 8-hour ozone attainment demonstration or rate-of-progress plan, when these SIP revisions become required for the Atlanta 8-Hour Ozone Area. In its revision, Georgia indicated that they have included reductions from outside the nonattainment area towards the progress demonstration for the Atlanta Early Progress SIP. However, since the development of this SIP revision by Georgia, the D.C. Circuit Court of Appeals vacated and remanded the policy provision of EPA's Phase II Ozone Implementation Rule (70 FR 71612, November 11, 2005) that allowed rate of progress/reasonable further progress credit for reductions to come from outside the nonattainment area. *See, NRDC* v. *EPA,* 2007 U.S. App. Lexis 25796 (November 2, 2007). EPA is now reconsidering its Phase II Rule. See, *http://www.epa.gov/air/ozonepollution/pdfs/20061211_reconsideration_fs.pdf* , for more information. Even if EPA determines, after reconsideration, that it is not appropriate to allow credit for reductions from outside the nonattainment area, it is still appropriate to approve this voluntary Early Progress Plan because sufficient reductions occur within the nonattainment area. Additionally, the reductions from outside the nonattainment were not used by the State of Georgia to demonstrate the progress necessary for this nonattainment area to establish Early Progress MVEBs. VII. What Is EPA's Analysis of the Request? On January 16, 2007, EPA received a request for approval of an Early Progress Plan for the sole purpose of establishing MVEBs for the 20-county Atlanta 8-Hour Ozone Area. The submittal utilizes a base year of 2002 to establish NO <sup>X</sup> and VOC MVEBs for the year 2006. The planning assumptions used to develop the MVEBs were discussed and agreed to by the Atlanta interagency consultation group, which consists of the transportation and air quality partners in the Atlanta 8-hour ozone nonattainment area. The total emissions in 2002 from point, area, nonroad and mobile sources for the Atlanta 8-Hour Ozone Area equaled 642.3 tpd of NO <sup>X</sup> and 713.7 tpd of VOC. The projected total emissions for the aforementioned source categories for 2006 for Atlanta equaled 525.4 tpd of NO <sup>X</sup> and 602.4 tpd of VOC. This represents an 18 percent reduction in NO <sup>X</sup> and a 16 percent reduction in VOC emissions from 2002 to 2006 from sources located within the 20-county nonattainment area, which is a greater reduction than necessary to represent a significant level of emissions reductions. Tables 2 and 3 below show the 2002 actual emissions and 2006 emission projections for point, area, nonroad and mobile source reductions. Table 2.—Atlanta 8-Hour Ozone Area NO <sup>X</sup> Emissions [Tons per day] Source category 2002 2006 Point 139.8 80.8 Area 32.5 32.7 On-road Mobile* 342.14 306.72 Nonroad 127.9 105.1 Total ** 642.3 525.4 * Calculated using MOBILE 6.2. ** There may be a slight difference for this total due to various rounding conventions used by the State to generate the emissions for point, area, onroad mobile and nonroad sources. Table 3.—Atlanta 8-Hour Ozone Area VOC Emissions [Tons per day] Source category 2002 2006 Point 20.6 19.6 Area 347.6 326.4 On-road Mobile* 224.66 ***172.22 Nonroad 120.9 84.2 Total ** 713.7 ***602.4 * Calculated using MOBILE 6.2. ** There may be a slight difference for this total due to various rounding conventions used by the State to generate the emissions for point, area, onroad mobile and nonroad sources. *** Including the senior inspection & maintenance exemption, this total is 172.27 tpd, indicating a grand total of 602.45. The 2006 MVEBs, as discussed in Section III of this rulemaking, are consistent with Georgia's 2002 emission baseline and 2006 projected inventories for on-road mobile sources. Atlanta's Early Progress Plan, including the 2006 MVEBs, is approvable because the SIP revision meets all applicable requirements for a voluntary Early Progress Plan. In a separate action, EPA has already found these MVEBs adequate for transportation conformity purposes. Please see Section VIII of this rulemaking for more details on the adequacy process. VIII. What Is the Status of EPA's Adequacy Determination for MVEBs for the Atlanta 8-Hour Ozone Area? Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the state's air quality plan (or SIP) that addresses pollution from cars and trucks. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. The regional emissions analysis is one, but not the only, requirement for implementing transportation conformity. Transportation conformity is a requirement for nonattainment and maintenance areas. Maintenance areas are those that were previously nonattainment for a particular NAAQS but have since been redesignated to attainment with a maintenance plan for that NAAQS. When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA must affirmatively find the MVEB contained therein “adequate” for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB can be used by state and Federal agencies in determining whether proposed transportation projects “conform” to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining “adequacy” of an MVEB are set out in 40 CFR 93.118(e)(4). The process for determining “adequacy” consists of three basic steps: Public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; transportation conformity rule amendments—Response to Court Decision and Additional Rule Change,” on July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in making its adequacy determinations. Atlanta's Early Progress Plan submission contained new regional NO <sup>X</sup> and VOC MVEBs for the Atlanta 8-Hour Ozone Area for the year 2006. The availability of the Georgia SIP submission with the Atlanta MVEBs was available for public comment on EPA's adequacy Web page on October 30, 2006, at: *http://www.epa.gov/otaq/stateresources/transconf/currsips.htm* . The EPA public comment period on adequacy of the 2006 regional MVEBs for the Atlanta 8-Hour Ozone Area closed on November 29, 2006. EPA did not receive any comments or requests for the submittal. EPA could not complete its adequacy process until the final submission of the Early Progress Plan was provided to EPA by the State of Georgia. EPA received the final submission on January 16, 2007. On January 24, 2007, EPA Region 4 sent a letter to Georgia informing them that EPA had found the MVEBs in Atlanta Early Progress Plan, dated January 12, 2007, to be adequate for transportation conformity purposes. In the January 24, 2007, letter, EPA explained that the MVEBs would be made available for use upon the effective date of EPA's notice of adequacy for these MVEBs in the **Federal Register** . On April 9, 2007, EPA published a notice of adequacy in the **Federal Register** , and explained to the public that the notice was simply an announcement of a finding that EPA had already made. Further, the April 9, 2007, **Federal Register** notice explained that EPA Region 4 had sent a letter to Georgia on January 24, 2007, to inform the State that the MVEBs in the Atlanta Early Progress Plan, dated January 12, 2007, were adequate for the purposes of transportation conformity (72 FR 17550). In the April 9, 2007, **Federal Register** notice, EPA inadvertently mislabeled the Atlanta 8-hour ozone NO <sup>X</sup> MVEB as 172.27 tpd and the VOC MVEB as 306.75 tpd. As announced in EPA's letter to Georgia on January 24, 2007, the 2006 MVEBs for the Atlanta 8-Hour Ozone Area, as established by the Early Progress Plan for Atlanta are actually 306.75 tpd for NO <sup>X</sup> and 172.27 tpd for VOC. EPA corrected this error in a **Federal Register** notice published on August 24, 2007 (72 FR 48635). This finding was also announced on EPA's conformity Web site: *http://www.epa.gov/otaq/stateresources/transconf/pastsips.htm* . IX. Final Actions on Atlanta's Early Progress Plan and the 2006 MVEBs EPA is now taking direct final action to approve the January 12, 2007, SIP revision containing Atlanta's Early Progress Plan, which includes regional MVEBs for 2006 for the entire Atlanta 8-Hour Ozone Area. EPA is approving the Early Progress Plan and the regional MVEBs for the Atlanta 8-Hour Ozone Nonattainment Area because the plan meets all the requirements of a SIP submittal, and because the MVEBs, when considered with emissions from all sources, are contained in a SIP that shows some progress towards attainment from the base year of 2002 to the target year of 2006. EPA previously made these MVEBs available for use by the transportation partners through EPA's adequacy process. These MVEBs are currently being used in this area to demonstrate transportation conformity. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective April 21, 2008 without further notice unless the Agency receives adverse comments by March 21, 2008. If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 21, 2008 and no further action will be taken on the proposed rule. X. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a SIP revision implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by *April 21, 2008* . Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: February 6, 2008. J.I. Palmer, Jr., Regional Administrator, Region 4. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart L—Georgia 2. Section 52.570
(e)is amended by adding a new entry at the end of the table for “27. Atlanta Early Progress Plan” to read as follows: § 52.570 Identification of plan.
(e)* * * EPA-Approved Georgia Non-regulatory Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State submittal date/effective date EPA approval date * * * * * * * 27. Atlanta Early Progress Plan Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Hall, Henry, Newton, Paulding, Rockdale, Spalding and Walton counties 1/12/07 2/20/08 [Insert first page of publication]. [FR Doc. E8-2706 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0223; FRL-8344-7] 1-Propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]-, monosodium salt, polymer with ethenol and ethenyl acetate; Exemption from the Requirement of a Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes an exemption from the requirement of a tolerance for residues of 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]-, monosodium salt, polymer with ethenol and ethenyl acetate (CAS Reg. No. 107568-12-7) when used as an inert ingredient in a pesticide chemical formulation. Keller and Heckman, LLP submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996
(FQPA)requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]-, monosodium salt, polymer with ethenol and ethenyl acetate. DATES: This regulation is effective February 20, 2008. Objections and requests for hearings must be received on or before April 21, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0223. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Karen Samek, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)347-8825; e-mail address: *samek.karen@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this “ **Federal Register** ” document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, as amended by FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0223 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 21, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2007-0223, by one of the following methods. • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Background and Statutory Findings In the **Federal Register** on April 30, 2007 (72 FR 21261) (FRL-8124-5), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA (Public Law 104-170), announcing the filing of a pesticide petition (PP 7E7193) by Keller and Heckman LLP, 1001 G St., NW., Suite 500 West, Washington, DC 20001. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate; CAS Reg. No. 107568-12-7. That notice included a summary of the petition prepared by the petitioner. There were no comments in response to the notice of filing. Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue” and specifies factors EPA is to consider in establishing an exemption. III. Inert Ingredient Definition Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients. IV. Risk Assessment and Statutory Findings EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established. Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, reliability, and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers that should present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). 1-Propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate conforms to the definition of a polymer given in 40 CFR 723(b) and meets the following criteria that are used to identify low risk polymers: 1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment. 2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen. 3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii). 4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize. 5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption. 6. The polymer is not a water absorbing polymer with a number average molecular weight
(MW)greater than or equal to 10,000 daltons. Additionally, the polymer, also meets as required the following exemption criteria specified in 40 CFR 723.250(e). 7. The polymer's number average MW of 55,000 daltons is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000. Thus, 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate meets all the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate. V. Aggregate Exposures For the purposes of assessing potential exposure under this exemption, EPA considered that 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate is 50,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate conforms to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health. VI. Cumulative Effects Section 408 (b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance or tolerance exemption, the Agency consider “available information” concerning the cumulative effects of a particular chemical's residues and “other substances that have a common mechanism of toxicity.” EPA does not have, at this time, available data to determine whether 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate has a common mechanism of toxicity with other substances. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate and any other substances and 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative* . VII. Additional Safety Factor for the Protection of Infants and Children Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for pre-natal and post-natal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary. VIII. Determination of Safety Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate. IX. Other Considerations A. Analytical Enforcement Methodology An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. B. International Tolerances The Agency is not aware of any country requiring a tolerance for 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate nor have any CODEX Maximum Residue Levels
(MRLs)been established for any food crops at this time. X. Conclusion Accordingly, EPA finds that exempting residues of 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]- monosodium salt, polymer with ethenol and ethenyl acetate from the requirement of a tolerance will be safe. XI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). XII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: February 6, 2008. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. In §180.960, the table is amended by alphabetically adding the following polymer to read as follows: § 180.960 Polymers; exemptions from the requirement of a tolerance. * * * Polymer CAS Reg. No. * * * * * 1-propanesulfonic acid, 2-methyl-2-[(1-oxo-2-propenyl)amino]-, monosodium salt, polymer with ethenol and ethenyl acetate, minimum number average molecular weight (in amu) 50,000 107568-12-7 * * * * * [FR Doc. E8-3126 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2005-0306; FRL-8347-8] Vitamin E, d-alpha tocopherol, dl-alpha tocopherol, d-alpha tocopheryl acetate, and dl-alpha tocopheryl acetate; Inert Ingredients; Exemption from the Requirement of a Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes an exemption from the requirement of a tolerance under 40 CFR 180.910 for residues of vitamin E (CAS Reg. No. 1406-18-4), d-alpha tocopherol (CAS Reg. No. 9-02-9), dl-alpha tocopherol (CAS Reg. No.10191-41-0), d-alpha tocopheryl acetate (CAS Reg. No. 58-95-7), and dl-alpha tocopheryl acetate (CAS Reg. No. 7695-91-2) in or on raw agricultural commodities when applied or used as inert ingredients in pesticide formulations. Because these five substances are chemically-similar, for the sake of simplicity, discussion of vitamin E in this rule (unless otherwise noted) can be considered to be vitamin E *per se* and/or one of the two alcohols (d-alpha tocopherol, dl-alpha tocopherol) or two acetates (d-alpha tocopheryl acetate, dl-alpha tocopheryl acetate). BASF Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act, as amended by the Food Quality Protection Act of 1996, requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of vitamin E. DATES: This regulation is effective February 20, 2008. Objections and requests for hearings must be received on or before April 21, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2005-0306. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Kathleen Martin, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-2857; e-mail address: *martin.kathleen@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 152. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, as amended by FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2005-0306 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 21, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2005-0306, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Background and Statutory Findings In the **Federal Register** of April 4, 2007 (72 FR 16352) (FRL-8119-2), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 5E6996) by BASF Corporation, PO Box 13528; Research Triangle Park, NC 27709. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of d-alpha tocopherol, d-alpha tocopheryl acetate, dl-alpha tocopherol acetate, dl-alpha tocopheryl, and/or vitamin E. That notice included a summary of the petition prepared by the petitioner BASF Corporation. Please note that the April 4, 2007 notice amended a previous Notice of Filing for that petition; it was published on January 18, 2006 (71 FR 2925) and was limited to a single substance, alpha-tocopherol (CAS Reg. No. 10191-41-0). BASF asked to amend the petition because it was too narrowly defined: “Alpha-tocopherol is known to be the most biologically active form of Vitamin E. However, the ester of alpha-tocopherol (alpha-tocopheryl acetate) is also a common source of Vitamin E. Alpha-tocopheryl acetate is converted to alpha-tocopherol in the body upon ingestion. For purposes of this rule, BASF requests that the acetate and alcohol forms of Vitamin E be viewed as equivalent substances and that the existing petition 5E6996 be amended to include the closely related Vitamin E substances.” Between the two notices, one comment was received in response to the notices of filing; it was addressed. Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. The following provides a brief summary of the risk assessment and conclusions for the Agency's review of vitamin E. The full decision document for this action is available on EPA's Electronic Docket at *http://www.regulations.gov/* under docket number EPA-HQ-OPP-2005-0306. III. Toxicological Profile Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The nature of the toxic effects caused by vitamin E is discussed in this unit. In brief, the Agency reviewed the available information on vitamin E submitted by the petitioner as well as additional information available to EPA in two international, peer-reviewed evaluations of vitamin E. The toxicity database is sufficient. In summary, vitamin E has low acute oral toxicity. Alpha-tocopherol has an lethal dose
(LD)<sup>50</sup> greater than 2,000 milligrams/kilograms bodyweight (mg/kg bw) in mice, rats, and rabbits. In subchronic toxicity testing vitamin E appears to elicit systemic toxicity to rats only at high doses, with the target organs being the liver and blood. Vitamin E has not been shown to be neurotoxic, mutagenic, or carcinogenic. Finally, no developmental and reproductive effects have been shown. IV. Aggregate Exposures In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from groundwater or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses). EPA does not have information available to assess the potential for exposure to vitamin E in consumer products. Nevertheless, given vitamin E's known role in human physiology and its presence in various foods such as nuts and vegetable oils, it is unlikely that residential exposures of concern would result from the use of vitamin E in nonpesticide products and as an ingredient in pesticide. Therefore, no further aggregate assessment is necessary. Dietary Exposure 1. *Food* . EPA estimated dietary exposures for use of vitamin E as an inert ingredient using Dietary Exposure Evaluation Model (DEEM TM ), a generic screening model that assumes that the inert ingredient is used on all commodities and that 100 percent of crops are treated with the inert ingredient. Generic chronic exposure for the overall U.S. population was estimated at 0.12 mg/kg/day. 2. *Drinking water exposure* . Surface water concentration of vitamin E was estimated at 0.065 parts per billion (ppb); EPA's Pesticide Root Zone Model - Exposure Analysis Modeling System (PRZM-EXAMS) model was used. Groundwater concentration was estimated at 0.0015 ppb using EPA's screening concentration in groundwater (SCI-GROW) model. V. Cumulative Effects Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to vitamin E (CAS Reg. Nos. 1406-18-4; 59-02-9; 10191-41-0; 58-95-7; and 7695-91-2) and any other substances and, this material does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that vitamin E (CAS Reg. Nos. 1406-18-4; 59-02-9; 10191-41-0; 58-95-7; and 7695-91-2) has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs
(OPP)concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative/* . VI. Determination of Safety for U.S. Population, Infants and Children Based on the information in this preamble, EPA concludes that there is a reasonable certainty of no harm from aggregate exposure to residues. Accordingly, EPA finds that exempting from the requirement of a tolerance will be safe. VII. Other Considerations A. Analytical Method(s) An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. B. International Tolerances The Agency is not aware of any country requiring a tolerance for vitamin E (CAS Reg. No. 1406-18-4), d-alpha tocopherol (CAS Reg. No. 9-02-9), dl-alpha tocopherol (CAS Reg. No.10191-41-0), d-alpha tocopheryl acetate (CAS Reg. No. 58-95-7), or dl-alpha tocopheryl acetate (CAS Reg. No. 7695-91-2), nor have any CODEX Maximum Residue Levels
(MRLs)been established for any food crops at this time. VIII. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). IX. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: February 6, 2008. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. In section 180.910 the table is amended by adding alphabetically the following inert ingredients to read as follows: § 180.910 Inert ingredients used pre-harvest and post-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses * * * * * * * d-Alpha tocopherol (CAS Reg. No. 9-02-9 None Safener d-Alpha tocopheryl acetate (CAS Reg. No. 58-95-7) None Safener dl-Alpha tocopherol (CAS Reg. No.10191-41-0) None Safener dl-Alpha tocopheryl acetate (CAS Reg. No. 7695-91-2) None Safener * * * * * * * Vitamin E (CAS Reg. No. 1406-18-4) None Safener * * * * * * * [FR Doc. E8-3127 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0193; FRL-8349-4] Carfentrazone-ethyl; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a tolerance for residues of carfentrazone-ethyl, (ethyl-alpha-2-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-3-methyl-5-oxo-1H-1,2,4-triazol-1-yl]-4-fluorobenzene propanoate) and the metabolite carfentrazone-chloropropionic acid (alpha, 2-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-3-methyl-5-oxo-1H-1,2,4-triazol-1-yl]-4-fluorobenzenepropanoic acid) in or on barley, bran at 0.80 ppm; barley, flour at 0.80 ppm; grain, aspirated grain fractions at 1.8 ppm; grain, cereal, group 15 (except rice grain and sorghum grain) at 0.10 ppm; grain, cereal, stover at 0.80 ppm; grain, cereal, straw at 3.0 ppm; hog, fat at 0.10 ppm; hog, meat at 0.10 ppm; hog, meat byproducts at 0.10 ppm; millet, flour at 0.80 ppm; oat, flour at 0.80 ppm; poultry, meat byproducts at 0.10 ppm; rice, grain at 1.3 ppm; rice, hulls at 3.5 ppm; rye, bran at 0.80 ppm; rye, flour at 0.80 ppm; sorghum, grain at 0.25 ppm; soybean, seed at 0.10 ppm; sugarcane at 0.15 ppm; wheat, bran at 0.80 ppm; wheat, flour at 0.80 ppm; wheat, germ at 0.80 ppm; wheat, middlings at 0.80 ppm; and wheat, shorts at 0.80 ppm. FMC Corporation requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective February 20, 2008. Objections and requests for hearings must be received on or before April 21, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0193. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Joanne I. Miller, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)305-6224; e-mail address: *miller.joanne@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0193 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before April 21, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2007-0193 by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Petition for Tolerance In the **Federal Register** of June 27, 2007 (72 FR 35240) (FRL-8133-4), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F7145) by FMC Corporation, 1735 Market Street, Philadelphia, PA 19103. The petition requested that 40 CFR 180.515 be amended by establishing a tolerance for residues of the herbicide carfentrazone-ethyl, (ethyl-alpha-2-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-3-methyl-5-oxo-1H-1,2,4-triazol-1-yl]-4-fluorobenzene propanoate) and the metabolite carfentrazone-chloropropionic acid (alpha, 2-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-3-methyl-5-oxo-1H-1,2,4-triazol-1-yl]-4-fluorobenzenepropanoic acid) in or on barley, bran at 0.80 ppm; barley, flour at 0.80 ppm; grain, aspirated grain fractions at 1.8 ppm; grain, cereal, group 15 (except rice grain and sorghum grain) at 0.10 ppm; grain, cereal, stover at 0.80 ppm; grain, cereal, straw at 3.0 ppm; hog, fat at 0.10 ppm; hog, meat at 0.10 ppm; hog, meat byproducts at 0.10 ppm; millet, flour at 0.80 ppm; oat, flour at 0.80 ppm; poultry, meat byproducts at 0.10 ppm; rice, grain at 1.3 ppm; rice, hulls at 3.5 ppm; rye, bran at 0.80 ppm; rye, flour at 0.80 ppm; sorghum, grain at 0.25 ppm; soybean, seed at 0.10 ppm; sugarcane at 0.15 ppm; wheat, bran at 0.80 ppm; wheat, flour at 0.80 ppm; wheat, germ at 0.80 ppm; wheat, middlings at 0.80 ppm; and wheat, shorts at 0.80 ppm. There were no comments received in response to the notice of filing. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” These provisions were added to FFDCA by the Food Quality Protection Act
(FQPA)of 1996. Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for carfentrzone-ethyl. EPA's assessment of exposures and risks associated with establishing the petitioned-for tolerances follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Carfentrazone-ethyl has low acute oral, dermal, and inhalation toxicity (Toxicity Category 3-4). It is non-irritating to skin and minimally irritating to eyes. It is not a skin sensitizer. The subchronic toxicity studies in rats, mice, and dogs demonstrated that the primary effects of carfentrazone-ethyl were on hermatology parameters (decreased mean corpuscular hemoglobin: MCH, mean corpuscular volume: MCV), urinary porphyrin excretion (increased), liver weights (increased), and histopathology. The chronic toxicity studies in rats and dogs demonstrated increased urinary porphyrin and microscopic examination showed hepatoxicity in rats and mice. Fluorescence microscopy on liver sections also revealed red fluorescent granules consistent with porphryin deposits in rats and mice. In carcinogenicity studies in mice and rats, there was no indication of increased incidence of neoplasms and spontaneous tumor formation at the doses tested. The results of the 2-generation reproduction and developmental toxicity studies indicated that carfentrazone-ethyl is not a developmental or reproductive toxicant. The acute and subchronic neurotoxicity studies showed that carfentrazone-ethyl is not neurotoxic. The mutagenic test battery demonstrated that carfentrazone-ethyl is not mutagenic. Specific information on the studies received and the nature of the adverse effects caused by carfentrazone-ethyl as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in the final rule published in the **Federal Register** of August 9, 2000 (65 FR 48621-48623) (FRL-6597-7). B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern
(LOC)is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors
(UFs)are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose
(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. Short-, intermediate-, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure
(MOE)called for by the product of all applicable UFs is not exceeded. For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . A summary of the toxicological endpoints for carfentrazone-ethyl used for human risk assessment can be found at *http://www.regulations.gov* in the document titled “Human Heath Risk Assessment” at page 9 in docket ID number EPA-HQ-OPP-2007-0193. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . In evaluating dietary exposure to carfentrazone-ethyl, EPA considered exposure under the petitioned-for tolerances as well as all existing carfentrazone-ethyl tolerances in (40 CFR 180.515). EPA assessed dietary exposures from carfentrazone-ethyl in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. In estimating acute dietary exposure, EPA used food consumption information from the U.S. Department of Agriculture
(USDA)1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed all foods for which there are tolerances were treated and contain tolerance-level residues. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA assumed all foods for which there are tolerances were treated and contain tolerance-level residues. iii. *Cancer* . Carfentrazone-ethyl is classified as “not likely” a human carcinogen and therefore an exposure assessment for assessing cancer risk is unnecessary. iv. *Anticipated residue and percent crop treated
(PCT)information* . EPA did not use anticipated residues or PCT information in the dietary assessment for carfentrazone-ethyl. The acute and dietary exposure analyses were based on tolerance level residues and 100 PCT assumptions. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for carfentrazone-ethyl in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the environmental fate characteristics of carfentrazone-ethyl. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . Based on the First Index Reservoir Screening Tool (FIRST) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated environmental concentrations
(EECs)of carfentrazone-ethyl for acute exposures are estimated to be 34.3 parts per billion
(ppb)for surface water and 13.4 ppb for ground water. The EECs for chronic exposures are estimated to be 19.0 ppb for surface water and 13.4 ppb for ground water. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 34.3 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 19.0 ppb was used to assess the contribution to drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Carfentrazone-ethyl is currently registered for the following residential non-dietary sites: Ornamental lawns and turf (application by commercial operators only). Residential exposure is also anticipated from aquatic applications of carfentrazone-ethyl. The risk assessment was conducted using the following residential exposure assumptions: Exposures to toddlers in the residential lawn setting would be higher than that encountered by toddlers in an institutional setting, such as in schools and parks. It was anticipated that herbicide application to homeowner lawns is a seasonal event, thus, only short-term post-application residential exposures were conducted. A swimmer exposure assessment was conducted based on the aquatic application. The swimmer assessment estimates exposures from oral (ingestion) and inhalation routes. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to carfentrazone-ethyl and any other substances and carfentrazone-ethyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that carfentrazone-ethyl has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional (“10X”) tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional UFs and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . There was no indication of increased susceptibility of rats or rabbits to *in utero* and/or postnatal exposure to carfentrazone-ethyl. There is no uncertainty for prenatal and/or postnatal toxicity. 3. *Conclusion* . EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X. That decision is based on the following findings: i. The toxicity database for carfentrazone-ethyl is complete. ii. There is no indication that carfentrazone-ethyl is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity. iii. There is no evidence that carfentrazone-ethyl results in increased susceptibility in *in utero* rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. Conservative ground and surface water modeling estimates were used. Similarly conservative Residential Standard Operating Procedures were used to assess post-application exposure to children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by carfentrazone-ethyl. E. Aggregate Risks and Determination of Safety Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-, intermediate-, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable UFs is not exceeded. 1. *Acute risk* . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to carfentrazone-ethyl will occupy 1% of the aPAD for the population group (children 1-2 years old) receiving the greatest exposure. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to carfentrazone-ethyl from food and water will utilize 89% of the cPAD for the population group (children 1-2 years old) receiving the greatest exposure. Based on the use pattern, chronic residential exposure to residues of carfentrazone-ethyl is not expected. 3. *Short-term risk* . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Carfentrazone-ethyl is currently registered for uses that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for carfentrazone-ethyl. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded that food, water, and residential exposures aggregated result in aggregate MOEs of: General U.S. population = 54,000; infants < 1 year old = 30,000; children 1-2 years old = 18,000; children 3-5 years old = 23,000; children 6-12 years old = 37,000; youth 13-19 years old = 60,000; adults 20-49 yeas old = 69,000; adults >50 years old = 73,000; and females 13-49 years old = 71,000. None of these MOEs show risks of concern. 4. *Intermediate-term risk* . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Residential exposure is not expected to occur over the intermediate-term. Therefore, the aggregate risk is the sum of the risk from food and water. 5. *Aggregate cancer risk for U.S. population* . Carfentrazone-ethyl is not expected to pose a cancer risk for humans. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to carfentrazone-ethyl residues. IV. Other Considerations A. Analytical Enforcement Methodology There is a practical method for detecting and measuring levels of carfentrazone-ethyl and its metabolites in or on food with a limit of detection that allows monitoring of food with residues at or above the levels set in these tolerances. The analytical method involves separate analyses for parent and its metabolite. The parent is analyzed by gas chromatography (GC)/electron capture detection (ECD). The metabolite is derivatized with boron trifluoride and acetic anhydride for analysis by GC/mass spectrometry detection
(MSD)using selective ion monitoring. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits No Codex maximum residue limits
(MRLs)have been established for residues of carfentrazone-ethyl on any crops at this time. V. Conclusion Therfore the tolerance is established for residues of carfentrazone-ethyl, (ethyl-alpha-2-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-3-methyl-5-oxo-1H-1,2,4-triazol-1-yl]-4-fluorobenzene propanoate) and the metabolite carfentrazone-chloropropionic acid (alpha, 2-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-3-methyl-5-oxo-1H-1,2,4-triazol-1-yl]-4-fluorobenzenepropanoic acid) in or on barley, bran at 0.80 ppm; barley, flour at 0.80 ppm; grain, aspirated grain fractions at 1.8 ppm; grain, cereal, group 15 (except rice grain and sorghum grain) at 0.10 ppm; grain, cereal, stover at 0.80 ppm; grain, cereal, straw at 3.0 ppm; hog, fat at 0.10 ppm; hog, meat at 0.10 ppm; hog, meat byproducts at 0.10 ppm; millet, flour at 0.80 ppm; oat, flour at 0.80 ppm; poultry, meat byproducts at 0.10 ppm; rice, grain at 1.3 ppm; rice, hulls at 3.5 ppm; rye, bran at 0.80 ppm; rye, flour at 0.80 ppm; sorghum, grain at 0.25 ppm; soybean, seed at 0.10 ppm; sugarcane at 0.15 ppm; wheat, bran at 0.80 ppm; wheat, flour at 0.80 ppm; wheat, germ at 0.80 ppm; wheat, middlings at 0.80 ppm; and wheat, shorts at 0.80 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: February 6, 2008. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.515 is amending the table in paragraph
(a)as follows: a. By placing the entry “Sorghum, forage” before the entry “Sorghum, sweet.” b. By revising the entries for “Soybean, seed” and “Sugarcane”, and c. By alphabetically adding the other commodities to read as follows: § 180.515 Carfentrazone-ethyl; tolerances for residues.
(a)* * * Commodity Parts per million * * * * * Barley, bran 0.80 Barley, flour 0.80 * * * * * Grain, aspirated grain fractions 1.8 * * * * * Grain, cereal, group 15 (except rice grain and sorghum grain) 0.10 Grain, cereal, stover 0.80 Grain, cereal, straw 3.0 * * * * * Hog, fat 0.10 Hog, meat 0.10 ppm Hog, meat byproducts 0.10 * * * * * Millet, flour 0.80 * * * * * Oat, flour 0.80 * * * * * Poultry, meat byproducts 0.10 * * * * * Rice, grain 1.3 Rice, hulls 3.5 * * * * * Rye, bran 0.80 Rye, flour 0.80 * * * * * Sorghum, grain 0.25 * * * * * Soybean, seed 0.10 * * * * * Sugarcane 0.15 * * * * * Wheat, bran 0.80 Wheat, flour 0.80 Wheat, germ 0.80 Wheat, middlings 0.80 Wheat, shorts 0.80 [FR Doc. E8-3111 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0030; FRL-8349-7] Mesotrione; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes tolerances for residues of mesotrione in or on asparagus, grass grown for seed, oats, okra, rhubarb, grain sorghum, sweet sorghum, and sugarcane. Syngenta Crop Protection requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective February 20, 2008. Objections and requests for hearings must be received on or before April 21, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0030. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Erik Kraft, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-9358; e-mail address: *kraft.erik @epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0030 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before April 21, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2007-0030, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Petition for Tolerance In the **Federal Register** of April 25, 2006 (71 FR 24695) (FRL-8063-7), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F7023) by Syngenta Crop Protection, P.O. Box 18300, Greensboro, NC. The petition requested that 40 CFR 180.571 be amended by establishing tolerances for residues of the herbicide mesotrione, 2-[4- (methylsulfonyl)-2-nitrobenzoyl]-1,3-cyclohexanedione, in or on commodity asparagus at 0.01 parts per million (ppm); grass, seed screenings at 0.10 ppm; grass, straw at 0.10 ppm; grass, forage at 0.01 ppm; grass, hay at 0.01 ppm; oats, grain, oats, straw at 0.01 ppm; oats, forage at 0.1 ppm; oats, hay at 0.01 ppm; okra at 0.01 ppm; rhubarb at 0.01 ppm; sorghum, forage at 0.01 ppm; sorghum, stover at 0.01 ppm; sorghum, grain at 0.01 ppm; sorghum, sweet at 0.01 ppm; and sugarcane at 0.01 ppm. That notice referenced a summary of the petition prepared by Syngenta Crop Protection, the registrant, which is available to the public in the docket, *http://www.regulations.gov* . There were no comments received in response to the notice of filing. Based upon review of the data supporting the petition, to harmonize with the Food and Feed Commodity Vocabulary *http://www.epa.gov/opphed01/foodfeed/index.htm* . EPA has amended the commodity listing to read: Asparagus at 0.01 ppm; grass, seed screenings at 0.10 ppm; grass, straw at 0.10 ppm; grass, forage at 0.01 ppm; grass, hay at 0.01 ppm; oat, grain at 0.01 ppm; oat, straw at 0.01 ppm; oat, forage at 0.01 ppm; oat, hay at 0.01 ppm; okra at 0.01 ppm; rhubarb at 0.01 ppm; sorghum, grain, forage at 0.01 ppm; sorghum, grain, grain at 0.01 ppm; sorghum, grain, stover at 0.01 ppm; sorghum, sweet at 0.01 ppm and sugarcane, cane at 0.01 ppm. III. Aggregate Risk Assessment and Determination of Safety Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.” These provisions were added to FFDCA by the Food Quality Protection Act
(FQPA)of 1996. Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for residues of mesotrione on asparagus at 0.01 ppm; grass, seed screenings at 0.10 ppm; grass, straw at 0.10 ppm; grass, forage at 0.01 ppm; grass, hay at 0.01 ppm; oat, grain at 0.01 ppm; oat, straw at 0.01 ppm; oat, forage at 0.01 ppm; oat, hay at 0.01 ppm; okra at 0.01 ppm; rhubarb at 0.01 ppm; sorghum, grain, forage at 0.01 ppm; sorghum, grain, grain at 0.01 ppm; sorghum, grain, stover at 0.01 ppm; sorghum, sweet at 0.01 ppm and sugarcane, cane at 0.01 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Mesotrione has low acute toxicity via the oral, dermal, and inhalation routes. It is a mild eye irritant, but is not a dermal irritant or a dermal sensitizer. In subchronic and chronic oral studies, ocular lesions, liver and kidney effects, and/or body weight decrements were the major adverse effects seen in the rat, mouse, and dog. Plasma tyrosine levels were increased in the rat, mouse and dog in the chronic and reproduction studies in which levels were measured. The ocular, liver and kidney effects are believed to be mediated by the high tyrosine levels in the blood caused by inhibition of the enzyme HPPD. Even though the rat is the most sensitive species to this effect compared to the dog and the mouse, EPA concluded that the mouse is a more appropriate model for assessing human risk than is the rat. There was no evidence of carcinogenic potential in either the rat chronic toxicity/carcinogenicity or mouse carcinogenicity studies and no concern for mutagenicity. No evidence of neurotoxicity or neuropathology was seen in the acute and subchronic neurotoxicity studies. In the multi-generation mouse reproduction study, one first generation male and one first generation female had retinal detachment with marked cataractous changes at the highest dose tested (>1000 milligrams/kilograms/day (mg/kg/day). In the subchronic toxicity dog study, the high-dose females had decreased absolute and relative brain weights; however, no microscopic abnormalities were noted in any brain tissues from the high-dose group and effect was not observed in the chronic toxicity dog study. Therefore, there is some concern about the effects of elevated plasma tyrosine levels on the developing nervous system in children due to a report that some patients with tyrosinemia III (an autosomal recessive disorder in which HPPD is deficient) were presented with mental retardation or neurological symptoms. There was evidence of increased susceptibility of rats, mice and rabbits to *in utero* and/or post-natal exposure to mesotrione. Specific information on the studies received and the nature of the adverse effects caused by mesotrione as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://www.regulations.gov* . The referenced document is available in the docket established by this action, which is described under ADDRESSES , and is identified as “Petition#: 6F7162. Mesotrione: Human Health Risk Assessment for Proposed Section 3 New Uses on Asparagus, Grasses Grown for Seed, Oats, Okra, Rhubarb, Sugarcane, Grain Sorghum, Sweet Sorghum and Turf (Golf Course and Sod Farms)” in that docket. Additionally, mesotrione toxicological data are discussed in the final rule published in the **Federal Register** of June 21, 2001 (66 FR 33187) (FRL-6787-7). B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern
(LOC)is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors
(UFs)are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose
(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. Short-, intermediate-, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure
(MOE)called for by the product of all applicable UFs is not exceeded. For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . A summary of the toxicological endpoints for mesotrione used for human risk assessment can be found at *http://www.regulations.gov* in document “Petition#: 6F7162. Mesotrione: Human Health Risk Assessment for Proposed Section 3 New Uses on Asparagus, Grasses Grown for Seed, Oats, Okra, Rhubarb, Sugarcane, Grain Sorghum, Sweet Sorghum and Turf (Golf Course and Sod Farms)” at page 15 in docket ID number EPA-HQ-OPP-2007-0030. C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . In evaluating dietary exposure to mesotrione, EPA considered exposure under the petitioned-for tolerances as well as all existing mesotrione tolerances in (40 CFR 180.571). EPA assessed dietary exposures from mesotrione in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for mesotrione; therefore, a quantitative acute dietary exposure assessment is unnecessary. ii. *Chronic exposure* . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996, and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed that all foods were treated for which there are proposed and established tolerances and that all the foods contain tolerance-level residues. iii. *Cancer* . Mesotrione was negative for carcinogenicity in feeding studies in rats and mice and was classified as “not likely” to be a human carcinogen. Therefore, a quantitative exposure assessment to evaluate cancer risk is unnecessary. 2. *Dietary exposure from drinking water* .The Agency lacks sufficient monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for mesotrione in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the environmental fate characteristics of mesotrione. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . Based on the First Index Reservoir Screening Tool (FIRST) and Screening Concentration in Ground Water (SCI-GROW) models for turf grass (Golf Courses and Sod Farms), the estimated drinking water concentrations (EDWCs) of mesotrione for chronic exposures are estimated to be 4.7 parts per billion
(ppb)for surface water and 0.18 ppb for ground water. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 4.7 ppb was used to assess the contribution to drinking water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Mesotrione, pyrasulfotole, isoxaflutole and topramezone belong to a class of herbicides that inhibit the liver enzyme 4-hydroxyphenylpyruvate dioxygenase (HPPD), which is involved in the catabolism (metabolic breakdown) of tyrosine (an amino acid derived from proteins in the diet). Inhibition of HPPD can result in elevated tyrosine levels in the blood, a condition called tyrosinemia. HPPD-inhibiting herbicides have been found to cause a number of toxicities in laboratory animal studies including ocular, developmental, liver and kidney effects. Of these toxicities, it is the ocular effect (corneal opacity) that is highly correlated with the elevated blood tyrosine levels. In fact, rats dosed with tyrosine alone show ocular opacities similar to those seen with HPPD inhibitors. Although the other toxicities may be associated with chemically-induced tyrosinemia, other mechanisms may also be involved. There are marked differences among species in the ocular toxicity associated with inhibition of HPPD. Ocular effects following treatment with HPPD inhibitor herbicides are seen in the rat but not in the mouse. Monkeys also seem to be recalcitrant to the ocular toxicity induced by HPPD inhibition. One explanation of this species-specific response in ocular opacity may be related to the species differences in the clearance of tyrosine. A metabolic pathway exists to remove tyrosine from the blood that involves a liver enzyme called tyrosine aminotransferase (TAT). In contrast to rats where ocular toxicity is observed following exposure to HPPD-inhibiting herbicides, mice and humans are unlikely to achieve the levels of plasma tyrosine necessary to produce ocular opacities because the activity of TAT in these species is much greater compared to rats. HPPD inhibitors (e.g., nitisinone) are used as an effective therapeutic agent to treat patients suffering from rare genetic diseases of tyrosine catabolism. Treatment starts in childhood but is often sustained throughout patient's lifetime. The human experience indicates that a therapeutic dose (1 mg/kg/day dose) of nitisinone has an excellent safety record in infants, children and adults and that serious adverse health outcomes have not been observed in a population followed for approximately a decade. Rarely, ocular effects are seen in patients with high plasma tyrosine levels; however, these effects are transient and can be readily reversed upon adherence to a restricted protein diet. This indicates that an HPPD inhibitor in and of itself cannot easily overwhelm the tyrosine-clearance mechanism in humans. Therefore, exposure to environmental residues of HPPD-inhibiting herbicides are unlikely to result in the high blood levels of tyrosine and ocular toxicity in humans due to an efficient metabolic process to handle excess tyrosine. The Agency continues to study the complex relationships between elevated tyrosine levels and biological effects in various species. Nonetheless, as a worst case scenario, EPA has assessed aggregate exposure to mesotrione based on ocular effects in rats. For similar reasons, a semi-quantitative screening cumulative assessment was conducted using the rat ocular effects and 100% crop treated information. The results of this screening analysis did not indicate a concern. In the future, assessments of HPPD-inhibiting herbicides will consider more appropriate models and cross species extrapolation methods. Therefore, EPA has not conducted cumulative risk assessment with other HPPD inhibitors. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional (“10X”) tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional UFs and/or special FQPA safety factors, as appropriate. 2. *Pre-natal and post-natal sensitivity* . There is quantitative evidence of increased susceptibility of the young in the oral prenatal developmental toxicity studies in rats, mice, and rabbits and in the multi-generation reproduction study in mice and lack of a developmental neurotoxicity study in mice. Quantitative evidence of increased susceptibility was not demonstrated in the multi-generation reproduction study in rats. However, no NOAEL was established for parental or offspring systemic toxicity. There is evidence of a qualitative increase in susceptibility since the tyrosinemia observed in the young was much more severe than that observed in the adults. 3. *Conclusion* . There are two deficiencies in the mesotrione toxicity database. First, a Developmental Neurotoxicity Study has been required to assess the effects on the developing nervous/ocular system from exposed to mesotrione. Second, the mouse two-generation reproduction study, on which the Reference Dose/ Population Adjusted Dose [RfD/PAD] is based failed to identify a NOAEL. In light of this data gap, the necessity of a reliance on a LOAEL to calculate the RfD/PAD, and the quantitative and qualitative evidence of increased susceptibility of the young discussed above, EPA is raising the 10X FQPA safety factor to the value of 30X. E. Aggregate Risks and Determination of Safety Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-, intermediate-, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable UFs is not exceeded. 1. *Acute risk* . There were no effects observed in oral toxicity studies including developmental toxicity studies in rats and rabbits that could be attributable to a single dose (exposure). Therefore, mesotrione is not expected to pose an acute risk. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to mesotrione from food and water will utilize 52% of the cPAD for the population group (All Infants (<1 year old)). There are no residential uses for mesotrione that result in chronic residential exposure to mesotrione. 3. *Short-term risk* . Short-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Mesotrione is currently registered for use on golf course turf grass that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for mesotrione. Post-application inhalation exposure is not expected and was not included in the risk estimates. No incidental oral exposure expected to adults or youth from residues on treated golf course grass. A summary of the assumptions for post application dermal exposure to golfers from mesotrione use on turf grass use and the risk assessment can be found at *http://www.regulations.gov* in document “Petition#: 6F7162. Mesotrione: Human Health Risk Assessment for Proposed Section 3 New Uses on Asparagus, Grasses Grown for Seed, Oats, Okra, Rhubarb, Sugarcane, Grain Sorghum, Sweet Sorghum and Turf (Golf Course and Sod Farms)” at page 27 in docket ID number EPA-HQ-OPP-2006-0030. EPA has concluded that food, water, and post application golf course turf exposures result in aggregate MOEs of 12,000 for Adults 20-49 years old and 12,000 for Youth 13-19 years old. Both do not exceed the Level of Concern MOE of 3,000 for mesotrione. 4. *Intermediate-term risk* . Intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Though residential exposure could occur application to golf course turf is not expected to result in residential post-application exposure of more than 30 days duration. Therefore, the Agency has determined that it is not appropriate to aggregate chronic food and water and intermediate-term exposures for mesotrione. 5. *Aggregate cancer risk for U.S. population* . Mesotrione is classified as a “not likely'' to be carcinogenic in humans based on the results of a carcinogenicity study in mice and the combined chronic toxicity and carcinogenicity study in the rat. Therefore, mesotrione is not expected to pose a cancer risk to humans. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population or to infants and children from aggregate exposure to mesotrione residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (high-pressure liquid chromatography fluorescence detector [HPLC/FLD]) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits There are no CODEX, Canadian, or Mexican tolerances/Maximum Residue Levels for mesotrione residues for the proposed crops. V. Conclusion Therefore, the tolerance is established for residues of mesotrione, 2-[4- (methylsulfonyl)-2-nitrobenzoyl]-1,3-cyclohexanedione, in or on asparagus at 0.01 ppm; grass, seed screenings at 0.10 ppm; grass, straw at 0.10 ppm; grass, forage at 0.01 ppm; grass, hay at 0.01 ppm; oat, grain at 0.01 ppm; oat, straw at 0.01 ppm; oat, forage at 0.01 ppm; oat, hay at 0.01 ppm; okra at 0.01 ppm; rhubarb at 0.01 ppm; sorghum, grain, forage at 0.01 ppm; sorghum, grain, grain at 0.01 ppm; sorghum, grain, stover at 0.01 ppm; sorghum, sweet at 0.01 ppm and sugarcane, cane at 0.01 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: February 7, 2008. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.571 is amended by alphabetically adding the following commodities in the table in paragraph
(a)to read as follows: § 180.571 Mesotrione; tolerances for residues. Commodity Parts per million Asparagus 0.01 * * * * * Grass, seed screenings 0.10 Grass, straw 0.10 Grass, forage 0.01 Grass, hay 0.01 * * * * * Oat, grain 0.01 Oat, straw 0.01 Oat, forage 0.01 Oat, hay 0.01 Okra 0.01 Rhubarb 0.01 Sorghum, grain, forage 0.01 Sorghum, grain, grain 0.01 Sorghum, grain, stover 0.01 Sorghum, sweet 0.01 Sugarcane, cane 0.01 [FR Doc. E8-3123 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0916; FRL-8343-6] Formetanate Hydrochloride; Pesticide Tolerances for Emergency Exemptions AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a time-limited tolerance for residues of formetanate hydrochloride, *m* -[[(dimethylamino)methylene]amino]phenyl methylcarbamate hydrochloride, in or on dry bulb onions. This action is in response to EPA's granting of emergency exemptions under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on dry bulb onions. This regulation establishes a maximum permissible level for residues of formetanate hydrochloride in this food commodity. The tolerance expires and is revoked on December 31, 2008. DATES: This regulation is effective February 20, 2008. Objections and requests for hearings must be received on or before April 21, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2006-0916. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Andrew Ertman, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-9367; e-mail address: *ertman.andrew@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0916 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before April 21, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0916., by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Background and Statutory Findings EPA, on its own initiative, in accordance with sections 408(e) and 408 (l)(6) of FFDCA, 21 U.S.C. 346a, is establishing a tolerance for residues of the insecticide formetanate hydrochloride, *m* -[[(dimethylamino)methylene]amino]phenyl methylcarbamate hydrochloride, in or on onions, dry bulb at 0.02 parts per million (ppm). This tolerance expires and is revoked on December 31, 2008. EPA will publish a document in the **Federal Register** to remove the revoked tolerance from the CFR. Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 of FFDCA to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party. Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by FQPA. EPA has established regulations governing such emergency exemptions in 40 CFR part 166. III. Emergency Exemption for Formetanate Hydrochloride on Dry Bulb Onions and FFDCA Tolerances The states of Idaho, Oregon, Colorado, Michigan, Ohio, Wisconsin, Texas and New York requested the use of formetanate hydrochloride, formulated as the product Carzol, on dry bulb onions to control thrips. According to these states, the available registered alternatives were not providing adequate control of this pest and without the use of Carzol, growers would suffer significant economic losses. After having reviewed the submissions, EPA concurred that emergency conditions exist and authorized under FIFRA section 18 the use of formetanate hydrochloride on dry bulb onions for control of thrips in Idaho, Oregon, Colorado, Michigan, Ohio, Wisconsin, Texas and New York. As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of formetanate hydrochloride in or on dry bulb onions. In doing so, EPA considered the safety standard in section 408(b)(2) of FFDCA, and EPA decided that the necessary tolerance under section 408(l)(6) of FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of FFDCA. Although this tolerance expires and is revoked on December 31, 2008, under section 408(l)(5) of FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on dry bulb onions after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this tolerance at the time of that application. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe. Because this tolerance is being approved under emergency conditions, EPA has not made any decisions about whether formetanate hydrochloride meets EPA's registration requirements for use on dry bulb onions or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this tolerance serves as a basis for registration of formetanate hydrochloride by a State for special local needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for persons in any State other than Idaho, Oregon, Colorado, Michigan, Ohio, Wisconsin, Texas and New York to use this pesticide on this crop under section 18 of FIFRA. For additional information regarding the emergency exemption for formetanate hydrochloride, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT . IV. Aggregate Risk Assessment and Determination of Safety EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of formetanate hydrochloride and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a time-limited tolerance for residues of formetanate hydrochloride in or on onions, dry bulb at 0.02 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows. In addition, an Interim Reregistration Eligibility Decision
(IRED)Document was published in March 2006. This IRED was proposed to become a final RED in the *N* -methyl Carbamate Revised Cumulative Risk Assessment that was made available for public comment on September 26, 2007. This IRED/RED provides additional information and more detail on the dietary exposures and risks associated with formetanate hydrochloride. The link for this document on the EPA website is: *http://www.epa.gov/oppsrrd1/REDs/formetanatehcl_ired.pdf* . A. Toxicological Endpoints The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological endpoint. However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor
(UF)is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences. For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute population Adjusted Dose
(aPAD)is a modification of the RfD to accommodate this type of FQPA SF. For non-dietary risk assessments (other than cancer) the UF is used to determine the level of concern (LOC). For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure
(MOE)= NOAEL/exposure) is calculated and compared to the LOC. The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x 10 6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non-linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE <sup>cancer</sup> = point of departure/exposures) is calculated. A summary of the toxicological endpoints for formetanate hydrochloride used for human risk assessment is shown in the following Table. In addition, as noted above in Unit IV., a detailed summary of the toxicological endpoints can be found in the Formetanate Hydrochloride IRED (which, as noted previously, is now proposed to become a final RED) ( *http://www.epa.gov/oppsrrd1/REDs/formetanatehcl_ired.pdf* ). Table 1.—Summary of Toxicological Endpoints and Doses for Formetanate Hydrochloride Dietary Risk Assessments Exposure Scenario Dose UF/MOE Hazard Based FQPA Safety Factor Endpoint for Risk Assessment Acute Dietary females 13-50 years of age Not applicable; the endpoint selected for the general population (see below) based on, and therefore protective of, this population subgroup. Acute Dietary general population BMDL 1 <sup>10</sup> = 0.065 mg/kg UF = 100
(a)aRfD = 0.00065 mg/kg 1X Acute PAD = 0.00065 mg/kg. BMDL <sup>10</sup> for female pup brain AChE in the Comparative ChE study. Chronic Dietary Not applicable; data on formetanate hydrochloride indicate that the magnitude of cholinesterase inhibition
(ChEI)does not increase with continued exposure because of the rapid reversibility of ChEI. Therefore, chronic exposure to formetanate hydrochloride may be considered as a series of acute exposures. Incidental Oral Short and intermediate terms Not applicable. There are no current registrations for residential uses. Cancer Group E Carcinogen; Classification: “Not likely.” B. Exposure Assessment 1. *Dietary exposure from food and feed uses.* Tolerances have been established (40 CFR 180.276) for the residues of formetanate hydrochloride, in or on a variety of raw agricultural commodities. Risk assessments were conducted by EPA to assess dietary exposures from formetanate hydrochloride in food as follows: i. *Acute exposure* . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. A tier 3, acute probabilistic dietary risk assessment was conducted using the Dietary Exposure Evaluation Model (DEEM-FCID, Version 2.03), which uses food consumption data from the USDA's Continuing Surveys of Food Intakes by Individuals (CSFII) from 1994-1996 and 1998. Drinking water exposure was incorporated directly into the dietary exposure analysis. The dietary assessment relies on Pesticide Data Program
(PDP)monitoring data from 2001 for oranges, grapefruit and pears. Anticipated residues for apples are derived using field trial data, since the PDP data reflect the late-season use on apples, which is no longer being supported by the registrant. Field trial residue data were submitted with the exemption request for both peeled and unpeeled onions. Since onions are generally peeled prior to eating, the peeled onion data were used in this assessment. No adjustment was made to account for the percent of onions treated (i.e., 100% crop treated was assumed). ii. *Chronic exposure* . Cholinesterase inhibition
(ChEI)is the only manifestation of exposure to formetanate HCl observed in the variety of toxicity studies conducted to support reregistration of this active ingredient. These formetanate HCl studies indicate that the magnitude of cholinesterase inhibition
(ChEI)does not increase with continued exposure because of the rapid reversibility of ChEI. Therefore, chronic exposure to formetanate HCl may be considered as a series of acute exposures, indicating that a chronic dietary exposure assessment is not necessary. iii. *Cancer* . Formetanate hydrochloride is classified as a group “E” carcinogen, and therefore a cancer exposure assessment is not required. iv. *Anticipated residue and percent crop treated
(PCT)information* . Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must pursuant to FFDCA section 408(f)(1) require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. For the present action, EPA will issue such data call-ins for information relating to anticipated residues as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Such data call-ins will be required to be submitted no later than 5 years from the date of issuance of this tolerance. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for formetanate hydrochloride in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of formetanate hydrochloride. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov/oppefed1/models/water/index.htm* . Tier II screening models, Pesticide Root Zone Model and Exposure Analysis Modeling System (PRZM and EXAMS) with the Index Reservoir and Percent Cropped Area adjustment (IR-PCA PRZM/EXAMS) were used to determine estimated surface water concentrations of formetanate HCL following application to apples in North Carolina, Pennsylvania and Oregon. As noted in previous sections of this document, additional detailed information regarding formetanate hydrochloride, including dietary exposure from drinking water can be found in the March 2006 IRED ( *http://www.epa.gov/oppsrrd1/REDs/formetanatehcl_ired.pdf* ). Based on the PRZM/EXAMS model described above, the highest estimated environmental concentration
(EEC)of formetanate hydrochloride for acute exposures is estimated to be 7.7 parts per billion
(ppb)for surface water based on applications to apples in North Carolina. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model (DEEM-FCID TM , Version 2.03). For the acute dietary risk assessment, the entire distribution of estimated daily exposure values from the PRZM-EXAMS run was used probabilistically in the analysis to assess the contribution to drinking water. 3. *Non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Formetanate hydrochloride is not registered for use on any sites that would result in residential exposure. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Formetanate hydrochloride belongs to the *N* -methyl carbamate class of chemicals for which a revised cumulative assessment has recently (72 FR 54656, September 26, 2007) been published by the Agency in the **Federal Register** for comment ( *http://www.epa.gov/oppsrrd1/REDs/nmc_revised_cra.pdf* ). This “Revised *N* -Methyl Carbamate Cumulative Risk Assessment” concludes that the cumulative risks from food, water, and residential exposure to *N* -methyl carbamates do not exceed the Agency's level of concern. Field trial data for formetanate hydrochloride residues on peeled onion (the value used in dietary risk assessment) are below the LOD of 0.0007 ppm. Field trial data are much more conservative (often 1 to 2 orders of magnitude higher in residue) than the PDP data generally used for registered uses in the cumulative assessment. Using residue values at half the LOQ of 0.002 ppm had negligible impact on dietary risk for formetanate hydrochloride in the *N* -methyl carbamate cumulative assessment. Furthermore, food derived from onion is not a significant contributor to the diet of infants less than 1 year old (the most sensitive subpopulation in the *N* -methyl carbamate cumulative assessment). If a tolerance were currently in place for formetanate hydrochloride use on onion, it would be among the “Insignificant Contributors” that, in their entirety, account for only 3% of the total risk in the *N* -methyl carbamate “risk cup.” These “Insignificant Contributors” had their tolerances fully reassessed on June 29, 2006 prior to completion of the full *N* -methyl carbamate cumulative assessment. See *http://www.epa.gov/pesticides/cumulative/carbamates_commodity.pdf* . In light of these residue findings for formetanate hydrochloride on onion, the Agency does not expect any significant contribution of exposure to the cumulative assessment and therefore, the conclusions from the revised cumulative risk assessment for the *N* -methyl carbamates remain unaffected by this emergency use on onions. C. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. 2. *Prenatal and postnatal sensitivity* . Formetanate HCl did not result in developmental toxicity in either rats or rabbits or in reproductive effects in the multi-generation reproduction study. There was no indication of increased offspring susceptibility in these studies. 3. *Conclusion* . There is a complete toxicity database for formetanate hydrochloride and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. The Agency determined that the FQPA Safety Factor can be removed (reduced to 1X) due to lack of concern and no residual uncertainties for prenatal and/or postnatal toxicity. Due to the conservative, health-protective nature of the models and the input parameters, EPA believes exposure via drinking water will not be underestimated. Therefore, the current hazard and exposure data support reducing the FQPA Safety Factor to 1X. Additional information may be found in the March 2006 IRED ( *http://www.epa.gov/oppsrrd1/REDs/formetanatehcl_ired.pdf* ) D. Aggregate Risks and Determination of Safety The Agency currently has two ways to estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses. First, a screening assessment can be used, in which the Agency calculates drinking water levels of comparison (DWLOCs) which are used as a point of comparison against estimated drinking water concentrations (EDWCs). The DWLOC values are not regulatory standards for drinking water, but are theoretical upper limits on the concentration of a pesticide in drinking water that can be considered safe in light of total aggregate exposure to a pesticide in food and residential uses. More information on the use of DWLOCs in dietary aggregate risk assessments can be found at *http://www.epa.gov/oppfead1/trac/science/screeningsop.pdf* . More recently the Agency has used another approach to estimate aggregate exposure through food, residential and drinking water pathways. In this approach, modeled surface and ground water EDWCs are directly incorporated into the dietary exposure analysis, along with food. This provides a more realistic estimate of exposure because actual body weights and water consumption from the CSFII are used. The combined food and water exposures are then added to estimated exposure from residential sources to calculate aggregate risks. The resulting exposure and risk estimates are still considered to be high end, due to the assumptions used in developing drinking water modeling inputs. The risk assessment for formetanate hydrochloride used in this tolerance document uses this approach of incorporating water exposure directly into the dietary exposure analysis. 1. *Acute risk* . Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to formetanate hydrochloride will occupy 36% of the aPAD for the U.S. population, 29% of the aPAD for females 13 years and older, 117% of the aPAD for all infants less than 1 year old and 69% of the aPAD for children 1 to 2 years old. These risk estimates are based on upper-end (99.9th percentile) exposure estimates for each population. The 99.9th percentile is used “in the first instance” in estimating exposure for probabilistic acute dietary exposure assessments which are based on highly refined exposure inputs. EPA evaluates whether to vary from use of the 99.9th percentile in assessing exposure based on considerations primarily related to the conservativeness or lack thereof of the various inputs to the assessment, with particular emphasis on an examination of the conservativeness of those inputs that most greatly influence the risk estimate. There are several inputs to the current assessment that are quite conservative. First, anticipated residue data for apples is based on field trial data as opposed to PDP data; this is likely to substantially overstate residue levels in apples as consumed. Second, EPA assumed that 100% of the onion crop will be treated with formetanate. Actual percent crop treated is likely to be substantially lower than that, if for no other reason than use is only permitted in a few States. Third, and most important, the estimated residue levels in water are very conservative compared to the refined food estimates that generally cause EPA to rely on the 99.9th percentile. This is particularly critical because the estimated dietary exposure from drinking water is the principal driver of the risk assessment, accounting for 106% of the aPAD for infants when considered alone. The drinking water exposure estimates were based on PRZM-EXAMS surface water modeling results. The PRZM-EXAMS model is intended to provide upper-end estimates of pesticide residues in surface water. The models use an Index Reservoir based on an actual drinking water reservoir in Illinois (Shipman City Lake) that is known to be vulnerable to pesticide contamination. Pesticide loadings to the water body are modeled using local soils and weather data to reflect crop-specific scenarios around the country. The conservativeness of this model and its tendency to overestimate residues was documented by EPA in an earlier tolerance proceeding. (69 FR 30042, 30060-30063, May 26, 2004). Additionally, there are pesticide-specific factors here that insure that PRZM-EXAMS modeling results will overestimate residue levels in drinking water. The modeling results were adjusted by a Percent Cropped Area
(PCA)factor of 0.87. In other words, the results assume that 87% of the watershed is cropped in apples (or other crops with similar use of formetanate) and that 100% of these crops are treated with formetanate HCl. The PCA factor does not consider the percent of the crop that is actually treated because detailed pesticide usage data (i.e., at the state or watershed level) are generally unavailable or inadequate. In the case of formetanate HCl, however, the national usage estimates suggest that a PCA factor of 0.87 significantly overestimates drinking water concentrations in many areas. Maximum percent crop treated
(PCT)estimates for apple, pear, peach, orange and grapefruit are 5% or less, and maximum PCT estimates for lemon/lime and nectarine are 15% and 46%, respectively. Thus, while it is theoretically possible there could be water basins in the United States that are planted almost entirely with crops that may lawfully be treated with formetanate HCl and that all crops in that water basin would be treated with formetanate HCl, the probability of these two unlikely events occurring together is very low. Accordingly, it is EPA's judgment that use of the 99.9th percentile to estimate exposure significantly overstates exposure and thus the estimated slight exceedance of the aPAD (117%) for infants does not show a risk of concern. This is confirmed by the fact the estimated exposure for this population group declines below the aPAD at the 99.86th percentile level. 2. *Chronic risk* . As noted in Unit IV.B.1.ii. of this preamble, cholinesterase inhibition
(ChEI)is the only manifestation of exposure to formetanate hydrochloride observed in the variety of toxicity studies conducted to support reregistration of this active ingredient. These formetanate hydrochloride studies indicate that the magnitude of cholinesterase inhibition
(ChEI)does not increase with continued exposure because of the rapid reversibility of ChEI. Therefore, chronic exposure to formetanate hydrochloride may be considered as a series of acute exposures, indicating that a chronic dietary risk assessment is not necessary. Inasmuch as EPA has concluded that there is no acute risk of concern, chronic risk is also not of concern. 3. *Short- and intermediate-term risk.* Short- and intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Formetanate hydrochloride is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the chronic risk from food and water, which was previously addressed and is not of concern. 4. *Aggregate cancer risk for U.S. population* . Formetanate hydrochloride is classified as a group “E” carcinogen and is therefore not expected to pose a cancer risk. 5. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to formetanate hydrochloride residues. V. Other Considerations A. Analytical Enforcement Methodology An adequate method is available for enforcement of the currently established plant tolerances Gas Chromatography with Electron Capture Detection (GC/ECD method (Method I); PAM Vol. II). For purposes of the Section 18 emergency exemption, EPA concludes that this method is sufficient to enforce the recommended onion tolerance. B. International Residue Limits There are no CODEX residue limits for residues of formetanate hydrochloride on onions, therefore, harmonization is not an issue. VI. Conclusion Therefore, a time-limited tolerance is established for residues of formetanate hydrochloride; *m* -[[(dimethylamino)methylene]amino]phenyl methylcarbamate hydrochloride in or on onion, dry bulb at 0.02 ppm. This time-limited tolerance expires and is revoked on December 31, 2008. VII. Statutory and Executive Order Reviews This final rule establishes a time-limited tolerance under section 408 of FFDCA. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 exemption under section 408 of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VIII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: February 6, 2008. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.276 is amended by adding text to paragraph
(b)to reads as follows: § 180.276 Formetanate hydrochloride; tolerances for residues.
(b)*Section 18 emergency exemptions* . A time-limited tolerance is established for residues of the insecticide formetanate hydrochloride ( *m* -[[(dimethylamino) methylene]amino]phenyl methylcarbamate hydrochloride) in connection with use of the pesticide under section 18 emergency exemptions granted by EPA. The tolerances in this paragraph will expire and are revoked on the date specified in the following table. Commodity Parts per million Expiration/revocation date Onion, dry bulb 0.02 12/31/08 [FR Doc. E8-2906 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-P GENERAL SERVICES ADMINISTRATION 41 CFR Part 102-118 [FMR Amendment 2008-04; FMR Case 2007-102-4; Docket 2008-0001; Sequence 1] RIN 3090-AI41 Federal Management Regulation; FMR Case 2007-102-4, Transportation Payment and Audit; Refund of Expired, Unused Tickets AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Interim final rule. SUMMARY: The General Services Administration is amending the Federal Management Regulation
(FMR)pertaining to unused tickets. The section is being deleted that was published without a public comment period. DATES: This final rule is effective on: February 20, 2008. FOR FURTHER INFORMATION CONTACT: For clarification of content, contact Mr. Ted J. Bembenek, Jr., at
(202)208-7629. The Regulatory Secretariat, Room 4035, GS Building, Washington, DC 20405,
(202)501-4755, for information pertaining to status or publication schedules. Please cite FMR Case 2007-102-4, Amendment 2008-04. SUPPLEMENTARY INFORMATION: A. Background GSA published § 102-118.196 in the **Federal Register** at 69 FR 57619, September 24, 2004, as an addition to part 118 of Title 41 (41 CFR part 118). The amendment was published as a final rule without a comment period and required that Transportation Service Providers
(TSPs)refund the value of expired, unused tickets to GSA's Audit Division when a ticket purchasing agency fails to notify the TSP of a cancellation. Since its publication, GSA has received feedback from sources who wanted to offer comments at the time the rule was originally published. After receipt of contacts from these sources, GSA agreed to remove this specific provision in its current form. In order to accomplish this, it is necessary to remove the existing provision, and this FMR does so. B. Executive Order 12866 This regulation is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, was not subject to review under Section 6(b) of that Executive Order. C. Regulatory Flexibility Act This final rule is not required to be published in the **Federal Register** for notice and comment as per the exemption specified in 5 U.S.C. 553(a)(2); therefore, the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.,* does not apply. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* E. Small Business Regulatory Enforcement Fairness Act This final rule is exempt from Congressional review under 5 U.S.C. 801 since it relates solely to agency management and personnel. List of Subjects in 41 CFR Part 102-118 Accounting, Claims, Reporting and recordkeeping requirements, Transportation. Dated: October 22, 2007. Lurita Doan, Administrator of General Services. For the reasons set forth in the preamble, GSA amends 41 CFR part 102-118 as set forth below: PART 102-118—TRANSPORTATION PAYMENT AND AUDIT 1. The authority citation for 41 CFR part 102-118 continues to read as follows: Authority: 31 U.S.C. 3726; and 40 U.S.C. 121(c), and 49 U.S.C. 10721, 13712, and 15504. § 102-118.196 [Removed] 2. Remove § 102-118.196. [FR Doc. E8-3101 Filed 2-19-08; 8:45 am] BILLING CODE 6820-14-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 385 and 395 [Docket No. FMCSA-2004-19608] RIN-2126-AB14 Hours of Service of Drivers AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Interim final rule (IFR); extension of comment period. SUMMARY: FMCSA extends the comment period for the Hours of Service of Drivers interim final rule published on December 17, 2007, for 30 days. The FMCSA received a request to extend the comment period from the Advocates for Highway and Auto Safety on February 7, 2008. The extension of the comment period will allow all interested parties additional time to submit comments to the interim final rule. DATES: Comments must be received on or before March 17, 2008. ADDRESSES: You may submit comments identified by Federal Docket Management System Number FMCSA-2004-19608 by any of the following methods: • *Web site: http://www.regulations.gov* . Follow the instructions for submitting comments on the Federal electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. • *Hand Delivery:* Ground Floor, Room W12-140, DOT Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. *Instructions:* All submissions must include the Agency name and docket number or Regulatory Identification Number
(RIN)for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading below. Note that all comments received will be posted without change to *http://www.regulations.gov,* including any personal information provided. Please see the Privacy Act heading below. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* at any time or to the ground floor, room W12-140, DOT Building, New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. *Privacy Act:* Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://docketsinfo.dot.gov* . *Public participation:* The *http://www.regulations.gov* Web site is generally available 24 hours each day, 365 days each year. You can obtain electronic submission and retrieval help and guidelines under the “help” section of the *http://www.regulations.gov* Web site and also at the DOT's *http://docketsinfo.dot.gov* Web site. If you want the Agency to notify you that your comments were received, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments online. Comments received after the comment closing date will be included in the docket, and we will consider late comments to the extent practicable. FMCSA may, however, issue a final rule at any time after the close of the comment period. FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Driver and Carrier Operations; or *MCPSD@dot.gov* . Telephone
(202)366-4325. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: On February 7, 2008, the Advocates for Highway and Auto Safety (Advocates) sent a request on behalf of themselves, Public Citizen, the Truck Safety Coalition, and the International Brotherhood of Teamsters for an extension of the comment period in the subject rulemaking proceeding. They stated that the complexity of the issues involved, including the new analyses provided in the interim final rule, has required serious evaluation that has taken up much of its limited staff time. The Advocates requested a 30-day extension of the comment period which they believe would be in the public interest and would not prevent the Agency from issuing a final rule in 2008. In order to allow petitioners and the general public an opportunity to provide comprehensive comments on the new analyses included in the interim final rule published by the Federal Motor Carrier Safety Administration on December 17, 2007, the Agency has decided to grant the petitioner's request to extend the comment period for the rulemaking by 30 days. The comment period has been extended and comments must be received on or before March 17, 2008. Issued: February 13, 2008. John H. Hill, Administrator. [FR Doc. E8-3073 Filed 2-19-08; 8:45 am] BILLING CODE 4910-EX-P 73 34 Wednesday, February 20, 2008 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0181; Directorate Identifier 2007-NM-180-AD] RIN 2120-AA64 Airworthiness Directives; Lockheed Model L-1011 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for all Lockheed Model L-1011 series airplanes. This proposed AD would require revising the FAA-approved maintenance program by incorporating new airworthiness limitations for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. This proposed AD would also require the accomplishment of certain fuel system modifications, the initial inspections of certain repetitive fuel system limitations to phase in those inspections, and repair if necessary. This proposed AD results from a design review of the fuel tank systems. We are proposing this AD to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by March 21, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Lockheed Continued Airworthiness Project Office, Attention: Airworthiness, 86 South Cobb Drive, Marietta, Georgia 30063-0567. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Robert A. Bosak, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 450, Atlanta, Georgia 30349; telephone
(770)703-6094; fax
(770)703-6097. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0181; Directorate Identifier 2007-NM-180-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this proposed AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane. Relevant Service Information We have reviewed Lockheed Service Bulletin 093-28-098, Revision 1, dated January 22, 2008. The service bulletin describes procedures for incorporating new airworthiness limitations for fuel tank systems into the operator's FAA-approved maintenance program. The airworthiness limitations for fuel tank systems include fuel system limitations
(FSLs)and critical design configuration control limitations (CDCCLs). FSLs are modifications, design features, and periodic inspections of certain features for latent failures that could contribute to an ignition source. CDCCLs are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection. Lockheed Service Bulletin 093-28-098 refers to the following service information for doing certain CDCCLs: • Hamilton Sundstrand Overhaul Manual 28-24-03, Revision 14, dated May 15, 2000, or later, for overhauling and repairing the electrically-operated fuel boost pumps. • Lockheed L-1011 Service Information Letter 28-12 for keeping the electrical conduit for the electrically-operated fuel boost pumps open and unplugged at the wing rear spar. • Lockheed Drawing 1527514 for installing the fuel tank valves, auxiliary power unit pump, sight gages, fuel quantity indicating system tank units, over wing filler cap adapter ring, boost pump mounting plate, and access doors for the boost pump, vent box, vent valve, and fuel level control switch. • Lockheed Service Bulletin 093-28-098 also refers to the following service bulletins as additional sources of service information for doing the FSLs: • Lockheed Service Bulletin 093-28-062, Revision 7, dated December 9, 1983, for Model L-1011 series airplanes, which describes procedures for inspecting and modifying the plug-in valve assemblies of the fuel shutoff system. • Lockheed Service Bulletin 093-28-089, Revision 3, dated October 4, 2006, for Model L-1011-385-3 series airplanes, which describes procedures for removing auxiliary fuel tank No. 4. • Lockheed Service Bulletin 093-28-093, Revision 1, dated February 8, 1999, for Model L-1011 series airplanes, which describes procedures for installing and inspecting fuel boost pumps and modifying the centrifugal pump and motor. • Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006, for Model L-1011 series airplanes. This service bulletin describes procedures for
(1)modifying the wiring harnesses of the fuel level control switch,
(2)repetitively inspecting the fuel level control switch, wiring harnesses, and harness conduit for any visible damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing,
(3)replacing the fuel level control switch assembly with a new assembly if any damage, wear or chafing, or indications of electrical arcing to the wiring is found or any broken or missing O-rings are found,
(4)notifying Lockheed of any discrepancies found during the inspection, and
(5)revising the airplane records and maintenance planning documents to require the repetitive inspections. The modification involves replacing the braided fiberglass sleeving with PVC electrical sleeving over each wiring harness and replacing the smaller inside diameter conduit with the larger inside diameter conduit, if applicable. (Although AD 2001-08-21, amendment 39-12198 (66 FR 21072, April 27, 2001) mandated accomplishment of Lockheed Service Bulletin 093-28-094, dated March 3, 2000, more work is necessary for Revision 1 of Lockheed Service Bulletin 093-28-094.) • Lockheed Service Bulletin 093-28-095, dated September 13, 2006, for Model L-1011 series airplanes. This service bulletin describes procedures for
(1)repetitively inspecting the airplane fuel tanks and vent boxes for cleanliness and evidence of deteriorated or damaged fuel/vent tubes and components,
(2)repetitively inspecting bonding jumpers on the fuel/vent tubes and components for proper installation, corrosion, frayed or broken strands, and the condition of the environmental sealing or bonding clamps and hardware,
(3)correcting any discrepant conditions,
(4)notifying Lockheed of any discrepancies found during the inspection,
(5)adding about 444 bonding jumpers across the fuel/vent tube fittings located in fuel tanks 1, 2L, 2R, and 3,
(6)repetitively inspecting the bonding jumpers on the fuel/vent tube fittings, and
(7)revising the airplane records and maintenance planning documents to require the repetitive inspections. • Lockheed Service Bulletin 093-28-096, Revision 2, dated June 23, 2006, for Model L-1011 series airplanes. This service bulletin describes procedures for
(1)repetitively inspecting the wiring harnesses of the No. 1 and No. 3 engine tank valves for evidence of damage and fuel contamination,
(2)replacing any damaged wire with new wire,
(3)repairing or replacing any contaminated wires as applicable,
(4)reporting any evidence of damage or wire replacement to Lockheed, and
(5)revising the airplane records and maintenance planning documents to require the repetitive inspections. • Lockheed Service Bulletin 093-28-097, dated August 3, 2006, for Model L-1011 series airplanes. This service bulletin describes procedures for
(1)installing identification markers or sleeving on the wiring harnesses of the fuel quantity indicating system (FQIS),
(2)repetitively inspecting the FQIS wiring harnesses for any visible damage, wear, chafing, or indications of electrical arcing,
(3)replacing or repairing any damaged wires,
(4)notifying Lockheed of any discrepancies found during the inspection, and
(5)revising the airplane records and maintenance planning documents to require the repetitive inspection. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Findings During the SFAR 88 safety assessment, Lockheed concluded that no operator had installed auxiliary fuel tank No. 4, in accordance with Lockheed Service Bulletin 093-28-089, on Model L-1011-385-3 series airplanes. Thus, safety assessments for the auxiliary fuel tank, including the electrical equipment involved with the modification, did not need to be analyzed to show compliance with SFAR 88. Since Lockheed has not provided the service information required under SFAR 88 that could lead the FAA to make a finding of compliance, and there is a possibility that there may be unreported installations of the modification, we must mandate the removal of auxiliary fuel tank. If an operator does not wish to remove the auxiliary fuel tank, we will consider requests for alternative methods of compliance (AMOCs). The most likely requests would be to allow continued use of the tank by showing compliance with SFAR 88. This would involve obtaining STCs and developing design and maintenance procedures to address all identified safety issues. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require revising the FAA-approved maintenance program to incorporate the FSLs and CDCCLs specified in Lockheed Service Bulletin 093-28-098. This proposed AD would also require the accomplishment of certain fuel system modifications, the initial inspections of certain repetitive FSLs to phase in those inspections, and repair if necessary. Differences Between the Proposed AD and Service Bulletin Lockheed Service Bulletin 093-28-098 specifies to revise the operator's maintenance program to incorporate Revision 7 of Lockheed Service Bulletin 093-28-062 and Revision 1 of Lockheed Service Bulletin 093-28-093. However, this proposed AD would not require those actions, since Lockheed Service Bulletins 093-28-062 and 093-28-093 are mandated by other ADs. AD 99-24-12, amendment 39-11436 (64 FR 66756, November 30, 1999), mandated Revision 1 of Lockheed Service Bulletin 093-28-093. AD 80-25-04, amendment 39-3983 (45 FR 79011, November 28, 1980), mandated Revision 1 of Lockheed Service Bulletin 093-28-062, but this proposed AD would not require accomplishing Revision 7 of the service bulletin since both Revisions 1 and 7 adequately address the unsafe condition. Where Lockheed Service Bulletin 093-28-098 specifies to inspect, this proposed AD would require a general visual inspection. We have included Note 2 in this proposed AD to define this type of inspection. Although Lockheed Service Bulletins 093-28-094, 093-28-095, 093-28-096, and 093-28-097 describe procedures for notifying Lockheed of any discrepancies found during inspection or any evidence of damage or wire replacement, this proposed AD would not require those actions. Explanation of Compliance Time In most ADs, we adopt a compliance time allowing a specified amount of time after the AD's effective date. In this case, however, the FAA has already issued regulations that require operators to revise their maintenance/inspection programs to address fuel tank safety issues. The compliance date for these regulations is December 16, 2008. To provide for efficient and coordinated implementation of these regulations and this proposed AD, we are using that same compliance date in this proposed AD. Costs of Compliance There are about 108 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs, at an average labor rate of $80 per hour, for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Maintenance program revision to incorporate FSLs and CDCCLs 4 None $320 63 $20,160 Removal of auxiliary fuel tank No. 4, if applicable 40 None 3,200 8 25,600 Modification and inspection of the wiring harnesses of the fuel level control switch 19 $974 2,494 63 157,122 Inspection of the airplane fuel tanks, vent boxes, and bonding jumpers, and the addition of bonding jumpers to the fuel/vent tube fittings 370 $18,491 48,091 63 3,029,733 Inspection of the wiring harnesses of the No. 1 and No. 3 engine tank valves 2 $41,785 41,945 63 2,642,535 Identification and inspection of the FQIS wiring harnesses 4 $336 656 63 41,328 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Lockheed:** Docket No. FAA-2008-0181; Directorate Identifier 2007-NM-180-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by March 21, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all Lockheed Model L-1011 series airplanes, certificated in any category. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance
(AMOC)in accordance with paragraph
(k)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Unsafe Condition
(d)This AD results from a design review of the fuel tank systems. We are issuing this AD to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Service Bulletin Reference
(f)The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of Lockheed Service Bulletin 093-28-098, Revision 1, dated January 22, 2008. Maintenance Program Revision
(g)Before December 16, 2008, revise the FAA-approved maintenance program to incorporate the fuel system limitations
(FSLs)specified in paragraph 2.B. of the service bulletin and the critical design configuration control limitations (CDCCLs) specified in paragraph 2.C. of the service bulletin; except as provided by paragraphs (g)(1) and (g)(2) of this AD.
(1)Where the FSLs specify to inspect, this AD would require doing a general visual inspection. Note 2: For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(2)For the CDCCLs specified in paragraphs 2.C.(2)(c), 2.C.(2)(d), and 2.C.(15)(a) of the service bulletin, do the applicable actions using a method approved in accordance with the procedures specified in paragraph
(k)of this AD. The applicable service information listed in Table 1 of this AD is one approved method. Table 1.—Approved Methods for Certain CDCCLs For the CDCCL identified in the service bulletin in paragraph— One approved method is— For— 2.C.(2)(c) Hamilton Sundstrand Overhaul Manual 28-24-03, Revision 14, dated May 15, 2000 Overhauling and repairing the electrically-operated fuel boost pumps. 2.C.(2)(d) Lockheed L-1011 Service Information Letter 28-12, dated March 17, 1998 Keeping the electrical conduit for the electrically-operated fuel boost pumps open and unplugged at the wing rear spar. 2.C.(15)(a) Lockheed Drawing 1527514, Revision D, dated November 11, 1981 Installing the fuel tank valves, auxiliary power unit pump, sight gages, fuel quantity indicating system tank units, over wing filler cap adapter ring, boost pump mounting plate, and access doors for the boost pump, vent box, vent valve, and fuel level control switch. Initial Accomplishment of FSLs and Repair if Necessary
(h)Before December 16, 2008, do the applicable FSLs specified in paragraphs 2.B.(1)(b), 2.B.(1)(d), 2.B.(1)(e), 2.B.(1)(f), and 2.B.(1)(g) of the service bulletin and repair any discrepancy, in accordance with the service bulletin. Any repair must be done before further flight. Note 3: The service bulletin refers to the service information listed in Table 2 of this AD as additional sources of service information for doing the FSLs and repair. Table 2.—Additional Sources of Service Information for Certain FSLs The FSL identified in the service bulletin in paragraph— Refers to Lockheed Service Bulletin— For— 2.B.(1)(b) 093-28-089, Revision 3, dated October 4, 2006 (or later) Removing auxiliary fuel tank No. 4, if applicable. 2.B.(1)(d) 093-28-094, Revision 1, dated June 23, 2006 (or later) Modifying the wiring harnesses of the fuel level control switch; repetitively inspecting the fuel level control switch, wiring harness, and harness conduit for any visible damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing; and replacing the fuel level control switch assembly with a new assembly if any damage or evidence of chafing to the wiring is found. 2.B.(1)(e) 093-28-095, dated September 13, 2006 (or later) Repetitively inspecting the airplane fuel tanks and vent boxes for cleanliness and evidence of deteriorated or damaged fuel/vent tubes and components; repetitively inspecting bonding jumpers for proper installation, corrosion, frayed or broken strands, and the condition of the environmental sealing or bonding clamps and hardware; correcting any discrepant conditions; adding bonding jumpers to the fuel/vent tube fittings; and repetitively inspecting the bonding jumpers on the fuel/vent tube fittings. 2.B.(1)(f) 093-28-096, Revision 2, dated June 23, 2006 (or later) Repetitively inspecting the wiring harnesses of the No. 1 and No. 3 engine tank valves for evidence of damage and fuel contamination; replacing any damaged wire with new wire; and repairing or replacing any contaminated wires as applicable. 2.B.(1)(g) 093-28-097, dated August 3, 2006 (or later) Identifying the wiring harnesses for the fuel quantity indicator system (FQIS); repetitively inspecting the FQIS wiring harnesses for any visible damage, wear, chafing, or indications of electrical arcing; and replacing or repairing any damaged wires as applicable. No Reporting Requirement
(i)Although Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006; Lockheed Service Bulletin 093-28-095, dated September 13, 2006; Lockheed Service Bulletin 093-28-096, Revision 2, dated June 23, 2006; and Lockheed Service Bulletin 093-28-097, dated August 3, 2006; specify to notify Lockheed of any discrepancies found during inspection or any evidence of damage or wire replacement, this AD does not require that action. No Alternative Inspections, Inspection Intervals, or CDCCLs
(j)After accomplishing the actions specified in paragraphs
(g)and
(h)of this AD, no alternative inspections, inspection intervals, or CDCCLs may be used unless the inspections, intervals, or CDCCLs are part of a later revision of the service bulletin that is approved by the Manager, Atlanta Aircraft Certification Office (ACO), FAA; or unless the inspections, intervals, or CDCCLs are approved as an AMOC in accordance with the procedures specified in paragraph
(k)of this AD. Alternative Methods of Compliance (AMOCs) (k)(1) The Manager, Atlanta ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Issued in Renton, Washington, on February 11, 2008. Stephen P. Boyd, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-2996 Filed 2-19-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0177; Directorate Identifier 2007-CE-093-AD] RIN 2120-AA64 Airworthiness Directives; Taylorcraft Models A, B, and F Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Taylorcraft Models A, B, and F series airplanes. This proposed AD would require inspection of the wing strut attach fittings for corrosion or cracks and would require repair or replacement if corrosion or cracks are found. This proposed AD results from data collected from an accident involving a Taylorcraft Model BF12-65 airplane. The wing separated from the airplane after the wing strut attach fitting failed due to corrosion. We are proposing this AD to detect and correct corrosion or cracks in the wing strut attach fittings. This condition, if not corrected, could result in failure of the wing strut attach fittings and lead to wing separation and loss of control. DATES: We must receive comments on this proposed AD by March 21, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Taylorcraft Aviation, LLC, 2124 North Central Avenue, Brownsville, Texas 78521; telephone: 956-986-0700. FOR FURTHER INFORMATION CONTACT: Andy McAnaul, Aerospace Engineer, 10100 Reunion Place, San Antonio, Texas 78216; telephone:
(210)308-3365; fax:
(210)308-3370. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2007-0177; Directorate Identifier 2007-CE-093-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion This proposed AD results from data collected after a double fatality accident involving a Taylorcraft Model BF12-65 airplane near Oregon City, Oregon in July 2007. The fitting was corroded approximately 70 percent through the fracture surface. The airplane's fabric was wrapped around the lugs of the wing strut attach fitting with the ends of the fabric stuffed into the fitting itself. The fabric plugged the drain hole on the bottom of the fitting and prevented water from draining out the front and back ends of the fitting. The fabric also did not allow for easy visual inspection of the exterior and interior of the fitting. In addition to fabric, the drain hole was blocked by other foreign debris as well. The corrosion or cracking is most likely to occur in the section between where the front and rear lift strut attach fittings are bolted to the fuselage fitting. This condition, if not corrected, could result in failure of the wing strut attach fittings and lead to wing separation and loss of control. Relevant Service Information We have reviewed Taylorcraft Aviation, LLC Service Bulletin No. 2007-002, dated November 8, 2007. The service information describes procedures for inspecting the wing strut attach fitting part number A-A11 for cracks or corrosion and procedures for any required repair or replacement. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require inspection of the wing strut attach fitting for cracks and corrosion and repair or replacement if cracks or corrosion are found. Costs of Compliance We estimate that this proposed AD would affect 3,119 airplanes in the U.S. registry. We estimate the following costs to do the proposed inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 2 work-hours × $80 per hour = $160 $0 $160 $499,040 We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this replacement: Labor cost per fitting Parts cost per fitting Total cost per airplane (for two fittings) 30 work-hours × $80 per hour = $2,400 $200 $5,200 We have no way of determining the number of airplanes that may require repair as a result of the proposed inspection or the extent of repair that may be required. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5527) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Taylorcraft:** Docket No. FAA-2007-0177; Directorate Identifier 2007-CE-093-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by March 21, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all serial numbers of Taylorcraft Models A, BC, BCS12-D, BCS, BC12-D1, BC-65, BCS12-D1, BCS-65, BC12D-85, BC12-65 (Army L-2H), BCS12D-85, BCS12-65, BC12D-4-85, BC12-D, BCS12D-4-85, (Army L-2G) BF, BFS, BF-60, BFS-60, BF-65, BFS-65, (Army L-2K) BF 12-65, BFS-65, BL, BLS, (Army L-2F) BL-65, BLS-65, (Army L-2J) BL12-65, BLS12-65, 19, F19, F21, F21A, F21B, F22, F22A, F22B, and F22C airplanes that are certificated in any category. Note: This AD applies to all Taylorcraft models listed above, including those models not listed in Taylorcraft Aviation, LLC Service Bulletin No. 2007-002, dated November 8, 2007. If there are any other differences between this AD and the above service bulletin, this AD takes precedence. Unsafe Condition
(d)This AD results from data collected from an accident involving a Taylorcraft Model BF12-65 airplane. The wing separated from the airplane after the wing strut attach fitting failed due to corrosion. We are proposing this AD to detect and correct corrosion or cracks in the wing strut attach fittings. This condition, if not corrected, could result in failure of the wing strut attach fittings and lead to wing separation and loss of control. Compliance
(e)To address this problem, you must do the following, unless already done:
(1)Initially inspect the left and right wing lift strut attach fittings, part number (P/N) A-A11, for corrosion or cracking following Taylorcraft Aviation, LLC Service Bulletin No. 2007-002, dated November 8, 2007, using the following compliance times:
(i)*For airplanes that have never been equipped with floats or snow skis:* Within the next 90 days after the effective date of this AD.
(ii)*For airplanes equipped with or that have ever been equipped with floats or snow skis:* Within the next 30 days after the effective date of this AD.
(2)If the airplane is equipped with floats or snow skis at the time of the initial inspection required by paragraph (e)(1) of this AD or at any time after the initial inspection required by paragraph (e)(1) of this AD, you must repeat the inspection required in paragraph (e)(1) of this AD as follows: If the following exists: Then:
(i)The airplane is equipped with floats or snow skis at the time of the initial inspection required by paragraph (e)(1) of this AD Inspect no later than 48 months following the initial inspection and repetitively inspect thereafter at intervals not to exceed 48 months. Continue these repetitive inspections until removal of floats or snow skis, at which time you must follow paragraph (e)(2)(ii) of this AD.
(ii)You remove floats or snow skis at any time following the initial inspection required by paragraph (e)(1) of this AD Inspect no later than 48 months following the last inspection. After the inspection following removal of floats or snow skis, no further inspections are required unless floats or snow skis are re-installed at a later date, at which time you must follow paragraph (e)(2)(iii) of this AD.
(iii)You install floats or snow skis at any time since the initial inspection required by paragraph (e)(1) of this AD Inspect no later than 48 months following the last inspection or before further flight after installation of floats or snow skis, whichever occurs later, and repetitively inspect thereafter at intervals not to exceed 48 months. Continue these repetitive inspections until removal of floats or snow skis, at which time you must follow paragraph (e)(2)(ii) of this AD.
(3)If you find cracking or material loss due to corrosion during any of the inspections required in paragraph (e)(1) or (e)(2) of this AD, before further flight, do the following:
(i)Contact Taylorcraft Aviation, LLC at 2124 North Central Avenue, Brownsville, Texas 78521; telephone: 956-986-0700 to obtain an FAA-approved repair scheme or replacement procedure; and
(ii)Repair following the FAA-approved repair scheme or replace the left and/or right wing lift strut attach fitting(s), P/N A-A11, following the replacement procedure. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Fort Worth Airplane Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Andy McAnaul, Aerospace Engineer, 10100 Reunion Place, San Antonio, Texas 78216; telephone:
(210)308-3365; fax:
(210)308-3370. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Related Information
(g)To get copies of the service information referenced in this AD, contact Taylorcraft Aviation, LLC, 2124 North Central Avenue, Brownsville, Texas 78521; telephone: 956-986-0700. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov.* Issued in Kansas City, Missouri, on February 12, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-2995 Filed 2-19-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 73 [Docket No. FAA-2008-0110; Airspace Docket No. 07-ASW-8] RIN 2120-AA66 Proposed Modification of Restricted Areas R-4401A, R-4401B, and R-4401C; Camp Shelby, MS AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: This action proposes a minor expansion of Restricted Areas R-4401A, B, and C, Camp Shelby, MS, by moving the southeastern corner of the areas approximately two nautical miles to the east of the current position. This change would ensure that aircraft conducting high altitude munitions delivery training at Camp Shelby remain within the confines of restricted airspace. DATES: Comments must be received on or before April 7, 2008. ADDRESSES: Send comments on this proposal to the U.S. Department of Transportation, Docket Management Facility, Docket Operations, M-30, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; *telephone:*
(202)366-9826. You must identify FAA Docket No. FAA-2008-0110 and Airspace Docket No. 07-ASW-8, at the beginning of your comments. You may also submit comments through the Internet at *http://www.regulations.gov* . FOR FURTHER INFORMATION CONTACT: Paul Gallant, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; *telephone:*
(202)267-8783. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA-2008-0110 and Airspace Docket No. 07-ASW-8) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at *http://www.regulations.gov* . Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2008-0110 and Airspace Docket No. 07-ASW-8.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Comments on environmental and land use aspects of this proposal may be sent to: Air National Guard Readiness Center, Chief, Environmental Planning Branch, NGB/A7CVP, 3500 Fetchet Avenue, Andrews Air Force Base, MD 20762-5157. Availability of NPRMs An electronic copy of this document may be downloaded through the Internet at *http://www.regulations.gov* . Recently published rulemaking documents can also be accessed through the FAA's webpage at *http://www.faa.gov* or the Federal Register's webpage at *http://www.gpoaccess.gov/fr/index.html* . You may review the public docket containing the proposal, any comments received and any final disposition in person at the Docket Management Facility (see ADDRESSES section for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Central Service Center, Federal Aviation Administration, 2601 Meacham Blvd.; Fort Worth, TX 76193-0500. Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking,
(202)267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. Background Restricted Areas R-4401A, B, and C, at Camp Shelby, MS, share a common boundary and overlie one another to provide restricted airspace, in layers, from ground level up to 29,000 feet MSL. The airspace is used to contain a variety of hazardous activities including air-to-ground live fire operations and ground-based live fire operations. Changes in fighter aircraft tactics have placed emphasis on training for high altitude munitions deliveries. It has been found that the current restricted areas do not provide enough airspace for high altitude delivery maneuvers. As a result, aircraft often spill-out into airspace controlled by Houston Air Route Traffic Control Center during the maneuvers. A minor expansion of the restricted areas on the east side would alleviate this problem. The Proposal At the request of the Air National Guard (ANG), the FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 73 to expand the size of Restricted Areas R-4401A, B, and C, at Camp Shelby, MS. The proposed minor modification would expand the restricted areas on the east side by moving the southeast corner of the areas approximately two nautical miles to the east of the current position. This change would provide additional airspace to ensure that aircraft maneuvering for high altitude munitions delivery training would remain within the confines of restricted airspace. The expanded restricted area boundary would extend into the existing De Soto 1 Military Operations Area (MOA), which lies adjacent to R-4401A and B. The De Soto 1 MOA boundary would also be modified to coincide with the revised restricted area boundary. Section 73.34 of Title 14 CFR part 73 was republished in FAA Order 7400.8N, effective February 16, 2007. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under Department of Transportation
(DOT)Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify R-4401A, B, and C, Camp Shelby, MS, to provide sufficient restricted airspace to contain hazardous activities. Related Airspace Proposal In addition to the proposed restricted area modification described above, the ANG is also requesting the FAA to modify the Military Operations Areas
(MOA)associated with the Camp Shelby range. MOAs are not regulatory airspace and, therefore, are not published in 14 CFR part 73. The ANG is requesting additional MOA airspace above the current De Soto 1 and De Soto 2 MOAs, to extend the MOA airspace supporting the range, up to 17,999 feet MSL. The FAA will seek comment on this separate airspace proposal through nonrulemaking procedures. Environmental Review This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action. List of Subjects in 14 CFR Part 73 Airspace, Prohibited areas, Restricted areas. The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows: PART 73—SPECIAL USE AIRSPACE 1. The authority citation for part 73 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 73.44 [Amended] 2. § 73.44 is amended as follows: R-4401A Camp Shelby, MS [Amended] By removing the current boundaries and substituting the following: Boundaries. Beginning at lat. 31°12′55″ N., long. 89°11′03″ W.; to lat. 31°11′49″ N., long. 89°00′00″ W.; to lat. 31°10′16″ N., long. 88°56′34″ W.; to lat. 31°04′37″ N., long. 88°56′34″ W.; to lat. 31°04′37″ N., long. 89°11′00″ W.; to the point of beginning. R-4401B Camp Shelby, MS [Amended] By removing the current boundaries and substituting the following: Boundaries. Beginning at lat. 31°12′55″ N., long. 89°11′03″ W.; to lat. 31°11′49″ N., long. 89°00′00″ W.; to lat. 31°10′16″ N., long. 88°56′34″ W.; to lat. 31°04′37″ N., long. 88°56′34″ W.; to lat. 31°04′37″ N., long. 89°11′00″ W.; to the point of beginning. R-4401C Camp Shelby, MS [Amended] By removing the current boundaries and substituting the following: Boundaries. Beginning at lat. 31°12′55″ N., long. 89°11′03″ W.; to lat. 31°11′49″ N., long. 89°00′00″ W.; to lat. 31°10′16″ N., long. 88°56′34″ W.; to lat. 31°04′37″ N., long. 88°56′34″ W.; to lat. 31°04′37″ N., long. 89°11′00″ W.; to the point of beginning. Issued in Washington, DC, on February 12, 2008. Ellen Crum, Acting Manager, Airspace and Rules Group. [FR Doc. E8-3138 Filed 2-19-08; 8:45 am] BILLING CODE 4910-13-P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4010 RIN 1212-AB01 Annual Financial and Actuarial Information Reporting; Pension Protection Act of 2006 AGENCY: Pension Benefit Guaranty Corporation. ACTION: Proposed rule. SUMMARY: This proposed rule would amend PBGC's regulation on Annual Financial and Actuarial Information Reporting to implement the provisions of the Pension Protection Act of 2006, Public Law 109-280 (“PPA 2006”), which changed the standards for determining which persons are required to report under ERISA section 4010 (Authority to Require Certain Information) and made other changes to the reporting requirements. In addition to providing proposed guidance on implementing the PPA 2006 changes, PBGC is proposing to waive reporting in certain cases for controlled groups with aggregate plan underfunding of $15 million or less, to modify the standards for determining which plans are exempted from the actuarial information requirements, to revise the actuarial information requirements to conform with other PPA 2006 changes, and to provide other clarifications. DATES: Comments must be submitted on or before April 21, 2008. ADDRESSES: Comments may be submitted by any of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov* . Follow the Web site instructions for submitting comments. • *E-mail:* *reg.comments@pbgc.gov* . • *Fax:* 202-326-4224. • *Mail or Hand Delivery:* Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026. All submissions must include the Regulatory Identification Number for this rulemaking (RIN 1212-AB01). Comments received, including personal information provided, will be posted to *http://www.pbgc.gov* . Copies of comments may also be obtained by writing to Disclosure Division, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026, or calling 202-326-4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4040.) FOR FURTHER INFORMATION CONTACT: John H. Hanley, Director, Legislative and Regulatory Department; or Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026; 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.) SUPPLEMENTARY INFORMATION: Background Pension Benefit Guaranty Corporation
(PBGC)administers the pension insurance programs under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). In order to give PBGC an opportunity to anticipate and attempt to minimize potential liabilities that may arise from the termination of significantly underfunded plans, ERISA section 4010 requires the reporting of actuarial and financial information by controlled groups with pension plans that have significant funding problems. That information is exempt from disclosure under section 552 of title 5, United States Code and may not be made public, except as may be relevant to any administrative or judicial action or proceeding. Pursuant to ERISA section 4010, PBGC issued its regulation on Annual Financial and Actuarial Information Reporting in 1995 (29 CFR part 4010). The regulation specifies the items of identifying, financial, and actuarial information that filers must submit under section 4010. PBGC reviews the information that is filed and enters it into an electronic database for more detailed analysis. Computer-assisted analysis of this information helps PBGC to anticipate possible major demands on the pension insurance system and to focus PBGC resources on situations that pose the greatest risks to that system. Because other sources of information are usually not as current as the section 4010 information, the section 4010 filing plays a major role in PBGC's ability to protect participant and premium-payer interests. In March of 2005, PBGC amended part 4010 to require electronic reporting and to make other less significant changes. Reporting is now accomplished through PBGC's secure e-4010 Web-based application. PPA 2006 Changes On August 17, 2006, the President signed into law the Pension Protection Act of 2006, Public Law 109-280 (“PPA 2006”), which made numerous changes in the area of pension law, including changes to ERISA section 4010. Prior to its amendment by PPA 2006, ERISA section 4010(b) required reporting, in general, if:
(1)The aggregate unfunded vested benefits of all plans maintained by members of the controlled group exceeded $50 million, disregarding plans with no unfunded vested benefits (the “$50 Million Gateway Test”);
(2)the conditions specified in ERISA section 302(f) and section 412(n) of the Internal Revenue Code (“Code”) for imposing a lien for missed contributions exceeding $1 million had been met with respect to any plan maintained by any member of the controlled group; or
(3)the Internal Revenue Service had granted minimum funding waivers in excess of $1 million to any plan maintained by any member of the controlled group, and any portion of the waiver(s) was still outstanding. Section 505 of PPA 2006 amended ERISA section 4010(b)(1), replacing the $50 Million Gateway Test with a test based on the funding target attainment percentage of each plan in the controlled group. As amended by PPA 2006, ERISA section 4010(b)(1) requires reporting if: the funding target attainment percentage (as defined in subsection
(d)1 ) at the end of the preceding plan year of a plan maintained by the contributing sponsor or any member of its controlled group is less than 80 percent. 1 ERISA section 4010(d)(2)(B) was added by section 505 of PPA 2006 and provides that “the term ‘funding target attainment percentage' has the meaning provided in section 302(d)(2) [sic].” However, ERISA section 302(d)(2) contains no reference to “funding target attainment percentage” but applies to certain retroactive plan amendments. On the other hand, ERISA section 303(d)(2) is entitled “Funding Target Attainment Percentage” and provides a definition for that term. Therefore, this proposed rule presumes the reference should have been to ERISA section 303(d)(2). (Current filers are reminded that PBGC regulations provide that if a filer for the immediately preceding information year is not required to file for the current information year, the filer must submit information, in accordance with the instructions on PBGC's Web site, demonstrating why a filing is not required for the current information year. This requirement would apply, for example, to a filer who was required to file for the information year ending on December 31, 2007, based on the $50 million Gateway Test, but who is not required to file for the information year ending on December 31, 2008, based on the new funding target attainment percentage gateway test.) Although PPA 2006 did not alter the substance of the other two triggers (found in paragraphs (b)(2) and (b)(3) of ERISA section 4010), it made other changes that affect these provisions. For instance, because PPA 2006 made changes to references in paragraph (b)(2), references in § 4010.4(a) (which describes who must file under part 4010) need to be amended. Similarly, PPA 2006 made changes to the minimum funding waiver provisions, which are referred to in part 4010. Finally, PPA 2006 added ERISA sections 4010(d)(1) and 4010(e). ERISA section 4010(d)(1) lists three items that must be included in the information filers submit to PBGC. 2 ERISA section 4010(e) requires PBGC to submit to Congress an annual summary report of the information submitted to PBGC pursuant to ERISA section 4010. 2 ERISA section 4010(a), which was unaltered by PPA 2006, provides that filers must provide the information specified by PBGC in regulations. Summary of Proposed Rule This proposed rule would amend part 4010 of PBGC's regulations to implement the change to ERISA section 4010(b)(1). In particular, this proposed rule provides guidance on how to determine whether reporting is required with respect to a plan based on the plan's funding target attainment percentage. The proposed rule would also make conforming changes to address the PPA 2006 changes affecting the section 4010 reporting triggers based on the imposition of certain liens or on the granting of certain minimum funding waivers. In conjunction with these changes, PBGC also is proposing:
(1)To waive reporting in certain cases for controlled groups with aggregate underfunding of $15 million or less;
(2)to modify the standards for determining which plans are exempted from reporting actuarial information;
(3)to modify the reporting requirements in light of the PPA 2006 changes; and
(4)to make other clarifications (for instance, the proposed rule would provide guidance for reporting for multiple employer plans and for dealing with certain unusual timing issues with respect to plan years and information years). The proposed rule would be applicable to information years beginning after December 31, 2007. (In the rare case of a short information year beginning in 2008, such as an information year beginning on January 1, 2008, and ending on March 31, 2008, the employer should contact PBGC to request a reporting extension.) However, the changes made to paragraphs
(a)and
(b)of § 4010.8 (Plan actuarial information) are effective only for plan years beginning after December 31, 2007. Discussion of Proposed Rule Information Year In the original proposed rule under ERISA section 4010 (60 CFR 35308, July 6, 1995), PBGC introduced the concept of “information year” The information year is the fiscal year, except that in the case of controlled group members with different fiscal years, the information year is the calendar year (§ 4011.5). In the preamble to that original proposed rule, PBGC explained that “information year” serves four purposes: First, it will help persons determine which plan years and fiscal years to use to identify Filers. Second, it will help Filers determine whether a pension plan qualifies for a filing exemption. Third, it is used to identify the information to be submitted by a Filer. Fourth, it establishes the due date for submission of required information by a Filer. The regulation does not require a Filer to change its fiscal year or the plan year of any pension plan. Further, the regulation does not require a Filer to report financial information on any accounting period other than an existing fiscal year or to report actuarial information for any period other than the existing plan year of a pension plan. Generally, the Information Year is the fiscal year of the Filer. If all members of a controlled group do not report financial information on the same fiscal year, the Information Year is the calendar year. “Information year” has been integral to the process of reporting under ERISA section 4010 and PBGC finds no indication that PPA 2006 alters this. Therefore, under the proposed rule, reporting will continue to be based on the concept of “information year.” Under the proposed rule, reporting would be required (unless otherwise waived) if any plan within the controlled group has a funding target attainment percentage of less than 80 percent for the plan year ending within the information year (the “80% Funded Gateway Test”). The proposed rule also would clarify how the 4010 requirements apply to certain unusual situations, such as when a plan has two plan years that end in the information year or has no plan year that ends in the information year. Under the proposed rule, the last plan year ending on or before the end of the information year would be treated as the plan year that ends within the information year. In addition, in order to prevent circularity, the proposed rule would provide that when a controlled group reports on the basis of two different fiscal years, the determination of whether an entity is exempt is made on the basis of a calendar year information year. Funding Target Attainment Percentage As discussed above, ERISA section 4010(b)(1), as amended by PPA 2006, requires reporting if the funding target attainment percentage at the end of the preceding plan year of a plan maintained by the contributing sponsor or any member of its controlled group is less than 80 percent. ERISA section 303(d)(2) provides that the “funding target attainment percentage” of a plan for a plan year is the ratio (expressed as a percentage) which—
(A)the value of plan assets for the plan year (as reduced under subsection (f)(4)(B)), bears to
(B)the funding target of the plan for the plan year (determined without regard to subsection (i)(1)). In accordance with ERISA section 303(g)(1), for a plan year, the value of plan assets and the funding target of a plan are determined as of the valuation date of the plan for such plan year. Under ERISA section 303(g)(2), the valuation date for nearly all plans subject to 4010 reporting will be the beginning of the plan year. 3 Thus, while section 4010(b)(1) refers to the funding target attainment percentage at the end of the preceding plan year, in nearly all cases both elements of the funding target attainment percentage must be calculated as of the beginning of the plan year. This creates an ambiguity with regard to the date as of which the funding target attainment percentage is to be calculated for purposes of section 4010(b)(1). 3 ERISA section 303(g)(2) provides that the valuation date of a plan for any plan year is the first day of the plan year, except that certain small plans may designate any date in the plan year to be the valuation date for the plan year and succeeding plan years. For this purpose, small plans are plans with 100 or fewer participants on each day of the plan year, when aggregated with all plans in the controlled group. Because PBGC proposes to exclude controlled groups with under $15 million in underfunding, plans that would be considered small plans for purposes of determining valuation dates would rarely be subject to reporting under part 4010. Therefore, the valuation date for nearly all plans subject to 4010 reporting would be the beginning of the plan year. The proposed rule would resolve this ambiguity by providing that the funding target attainment percentage (for purposes of the 80% Funded Gateway Test) would be determined as of the valuation date for the plan year ending within the information year—generally, the first day of the plan year that ends within the information year. Because plans will need to determine the funding target attainment percentage as of the valuation date for other purposes, measuring the funding target attainment percentage as of the valuation date for the 80% Funded Gateway Test should be less burdensome on prospective filers than requiring a separate determination as of the end of the preceding plan year. In addition, using this measurement date will give controlled groups ample time to determine whether reporting is required pursuant to the 80% Funded Gateway Test and to prepare the section 4010 filing (if required) by the due date. Reduction of Assets Based on Carryover and Prefunding Balances ERISA section 303(d)(2) provides that in determining the funding target attainment percentage of a plan for a plan year, plan assets are reduced by the amount of the prefunding balance and the funding standard carryover balance. Plan sponsors are permitted under ERISA section 303(f) to make certain elections to use, increase, or reduce a prefunding balance or a funding standard carryover balance effective at the beginning of the plan year. Under PPA 2006, the Department of the Treasury (“Treasury”) is to provide guidance on the timing and manner of these elections. On August 31, 2007, Treasury published a proposed rule (Benefit Restrictions for Underfunded Pension Plans) in the **Federal Register** at 72 FR 50544, which would provide guidance on such elections. That rule would require any such election to satisfy certain timing rules. As proposed, those Treasury rules would require an election that affects the funding target attainment percentage for a plan year to be made well before the due date for the section 4010 filing. Therefore, PBGC's proposed rule assumes that filers will have no difficulty including these elections in determinations made for purposes of section 4010. However, if under final Treasury regulations it is possible for a plan sponsor to make such an election after the due date for the section 4010 filing, the PBGC would expect controlled groups to anticipate any such election when determining the funding target attainment percentage, regardless of when the election is made. Certain Plans to Which Special Funding Rules Apply Sections 104, 105, and 106 of PPA 2006 defer the effective date of the funding amendments for certain plans described in those sections, which in general deal with plans of cooperatives, plans affected by settlement agreements with PBGC, and plans of government contractors. Section 402 of PPA 2006 applies special funding rules to certain plans of commercial passenger airlines and airline caterers. Section 402 of PPA was amended by the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, Public Law 110-28. None of these provisions affects the applicability of the amendments to ERISA section 4010. The proposed rule provides explicitly that plans in this small group must apply part 4010 in the same manner as all other plans (i.e., without regard to these sections of PPA). However, for purposes of § 4010.8(a)(9) (which specifies what information must be contained in the actuarial valuation report), the filer must provide details of any such funding rules that are applicable to the plan. Where the different funding rules for this small group affect an item described in § 4010.8(a)(9), PBGC would expect that filers could, in consultation with PBGC, provide appropriately modified information. Minimum Funding Waivers ERISA section 4010(b) requires 4010 reporting if the Internal Revenue Service has granted minimum funding waivers in excess of $1 million to any plan maintained by any member of the controlled group and as of the end of the plan year ending within the information year there is an outstanding balance on the waiver. In general, the waiver will continue to be included for all five years of the amortization period, unless the waiver amortization bases are reduced to zero pursuant to ERISA section 303(e)(5) or Code section 430(e)(5). PBGC notes that there is some uncertainty as to the effect of PPA 2006 on the carryover balances for funding waivers granted before 2008. The proposed rule makes clear that the statutory amortization period will not be deemed to have ended merely because the funding waivers granted with respect to plan years beginning before 2008 are not carried over as a separate amortization base for the post-2007 plan years. To simplify the regulation, the proposed rule would eliminate the provision in the current regulation that provides that a minimum funding waiver is not outstanding under certain circumstances where an agreement requires the maintenance of a specific credit balance. PBGC found that this occurred infrequently. In those cases where it does occur, PBGC will consider waiving the 4010 reporting requirement on a case-by-case basis under § 4010.11. Reporting Requirements In addition to the requirements described in ERISA section 4010(a), which provides that filers must submit certain financial and actuarial information as prescribed by PBGC in regulations, ERISA section 4010(d), as amended by PPA 2006, specifies three items that are required to be filed with PBGC. That section provides that information filed under section 4010 must include:
(1)The amount of benefit liabilities under the plan determined using the assumptions used by the corporation [PBGC] in determining liabilities;
(2)The funding target of the plan determined as if the plan has been in at-risk status for at least 5 plan years; and
(3)The funding target attainment percentage of the plan. The proposed rule provides detailed guidance on how to determine benefit liabilities as described in item (1), i.e., how to determine benefit liabilities for ongoing plans using the assumptions used by PBGC in determining liabilities. This determination would be similar to that set forth in the current regulation under § 4010.8(d)(2). As with the current regulation, the proposed rule would require filers to use the assumptions prescribed by §§ 4044.51 through 4044.57. However, as explained below, in two respects the proposed regulation would modify or expand upon previous guidance (including informal guidance) given by PBGC or PBGC staff relating to certain assumptions not specified in §§ 4044.51 through 4044.57. First, the proposed rule provides that solely for purposes of determining the earliest retirement age
(ERA)at valuation date and the unreduced retirement age
(URA)to be used when determining expected retirement age (XRA), an active participant would be treated as continuing in service after the end of the plan year. This provision would modify informal guidance provided by PBGC that future expected service should be disregarded when determining XRAs for 4010 liability calculations. 4 This modification would eliminate an inconsistency between how filers compute benefit liabilities for 4010 purposes and how PBGC calculates benefit liabilities as part of its plan monitoring functions. The main impact of this change on 4010 filers would be that they would need to make a one-time modification of their computer programs. The proposed rule includes examples demonstrating how XRA would be calculated and applied in determining benefit liabilities. 4 Q&A 17 in the 2001 Blue Book and Q&A 19 in the 2002 Blue Book, available at *www.pbgc.gov.* Blue Books are summaries of the questions and answers discussed at meetings between PBGC staff and representatives of the Enrolled Actuaries Program Committee in preparation for the annual Enrolled Actuaries Meetings. The summaries reflect the views of individual staff members and do not represent the official position of PBGC. Second, the proposed rule provides that a 4010 filer would be permitted to use pre-retirement assumptions other than mortality (such as turnover and disability assumptions) as long as the filer uses the same pre-retirement assumptions used to determine minimum required contributions. This provision would expand informal guidance provided by PBGC that it is permissible for 4010 purposes to use pre-retirement assumptions other than mortality. 5 The informal guidance was silent on which pre-retirement assumptions could be used. In PBGC's experience, most actuaries who choose to use pre-retirement assumptions for 4010 purposes use those same pre-retirement assumptions to determine minimum required contributions. Because the actuary certifies that the funding assumptions represent his best estimate of future experience, this practice is entirely reasonable, and the proposed rule would codify it for consistency. 5 Q&A 25 in the 2000 Blue Book. The proposed rule also would clarify that, with the exception of pre-retirement assumptions, any other assumptions used to determine the minimum required contribution that are not overridden by §§ 4044.51 through 4044.57 must be used when determining benefit liabilities. In addition to providing detailed guidance on how to determine benefit liabilities, the proposed rule reflects new requirements (under PPA 2006) to provide the funding target of the plan determined as if the plan has been in at-risk status for at least 5 plan years, and the funding target attainment percentage of the plan. Finally, for each plan (other than an exempt plan), the proposed rule would require filers to report whether the plan, at any time during the plan year, was subject to any of the limitations described in ERISA section 206(g) and, if so, which limitations applied, when such limitations applied, and when they were lifted (if applicable). As with the current rule, the proposed rule would require submission of the actuarial valuation report for the plan year ending within the filer's information year and would specify what information must be included in or attached to the report. PBGC is proposing to modify the required items of information to better suit the new funding structure instituted by PPA 2006. The required information is information that PBGC expects most actuaries would include in valuation reports once PPA 2006 takes effect (e.g., target normal cost, information on shortfall amortization bases, information on funding assumptions, an age/service scatter). However, because the funding rules have changed so dramatically as a result of PPA 2006, and because Treasury regulations implementing the new funding rules are not yet final, the list of required items may exclude some relevant actuarial information. To allow PBGC to expand the list of required items as it gains more experience with the new funding requirements under PPA 2006, the proposed rule would provide that the online instructions to PBGC's secure e-4010 web-based application may require that additional items be included in (or attached to) the valuation report. PBGC expects that any additional items would be items typically required to be reported on the Form 5500 schedule for defined benefit plan actuarial information (Schedule SB). Because the new actuarial reporting requirements are geared to the new funding rules, which generally are applicable to plan years beginning after December 31, 2007, the changes made to the actuarial information requirements under § 4010.8(a) and
(b)would not apply to plan years beginning before 2008. Information for such plan years would be based upon the prior regulation. (Note that the other paragraphs of § 4010.8 (as proposed), such as the new rules for determining which plans would be exempt from actuarial reporting requirements (§ 4010.8(c)) and the determination of liabilities (§ 4010.8(d)) would apply to all plan years ending within an information year that begins on or after January 1, 2008.) Waiver for Controlled Groups With Plan Underfunding Not Exceeding $15 Million The Technical Explanation of PPA 2006 prepared by the Staff of the Joint Committee on Taxation states: “It is intended that the PBGC may waive the requirement [for reporting under ERISA section 4010 based upon the 80% Funded Gateway Test] in appropriate circumstances, such as in the case of small plans.” Moreover, PBGC seeks to balance the benefit it derives from annual reporting of financial and actuarial information with the burden reporting imposes on filers. As the total underfunding in a filer's controlled group becomes smaller, the benefit PBGC derives from reporting lessens, while the burden on the filer tends to increase relative to the filer's resources. Based on its experience, PBGC has determined that controlled groups with aggregate plan underfunding of $15 million or less present a level of risk and exposure to PBGC that is sufficiently low to warrant the waiver of reporting based on the 80% Funded Gateway Test. Therefore, PBGC is proposing to waive reporting for a controlled group if the aggregate plan underfunding does not exceed $15 million (disregarding those plans with no underfunding); however, the waiver would not apply if reporting is required for any reason other than having a funding target attainment percentage below 80 percent. For this purpose, plan underfunding would equal the “4010 funding shortfall.” The proposed rule would define the 4010 funding shortfall as the funding shortfall defined in ERISA section 303(c)(4), but determined without regard to the credit balance reduction under ERISA section 303(f)(4)(B). Exempt Plans Section 4010.8(c) of PBGC's current regulation provides that reporting actuarial information is not required for plans with fewer than 500 participants. (It also provides an exemption for overfunded plans.) Through means other than reporting under part 4010, such as through PBGC's early warning program (see Technical Update 00-3, available at *www.pbgc.gov* ) and reportable events notices, PBGC has discovered that a number of plans with fewer than 500 participants have significant underfunding and thereby represent significant financial exposure for PBGC. In such cases, PBGC needs actuarial information on these plans to properly evaluate its risk and exposure for the entire controlled group. Therefore, PBGC is proposing to modify the exemption from reporting actuarial information. Under the proposed rule, actuarial information would not be required if
(1)the plan has fewer than 500 participants, and
(2)the plan's 4010 funding shortfall does not exceed $15 million. For this purpose, the 4010 funding shortfall would be determined as of the valuation date for the plan year ending within the information year and would be based upon the same methodology prescribed for purposes of determining whether the $15 million controlled-group waiver would apply. The proposed rule retains the exemption from providing actuarial information for plans that have no unfunded benefits. For this purpose, unfunded benefits would be determined in the same manner as they would be determined for purposes of ERISA section 4010(d)(1), which requires the reporting of benefit liabilities using the assumptions used by PBGC. The only difference is that the filer would be allowed to use the retirement age assumptions used by the plan for that plan year for purposes of section 303 of ERISA (without regard to the at-risk assumptions of section 303(i) of ERISA) instead of the retirement age assumptions in § 4044.8(d)(2). Note that, as under the current regulation, these exemptions from reporting actuarial information do not apply if the plan has a funding waiver or has been more than 10 days late with minimum funding contributions. Multiple Employer Plans Over the last decade, PBGC has received a number of inquiries on the application of ERISA section 4010 to contributing sponsors of multiple employer plans. The proposed rule would provide for reduced reporting for certain multiple employer plans. In general, only information on employers that are among the 10 largest employers in terms of participants (for hourly plans) or contributions (for salaried plans) would need to be provided. Of course, PBGC could request additional information pursuant to § 4010.6(b). In addition, the proposed rule would allow a filer to provide the actuarial information on a multiple employer plan by reference if that information (for the same plan year) has been provided by another filer. The proposed rule would clarify that the entire underfunding (i.e., funding shortfall) of a multiple employer plan is counted when determining whether the $15 million controlled-group waiver applies to an employer that is a contributing sponsor of the multiple employer plan. It also would clarify that filers are not required to provide identifying or financial information for another contributing sponsor of the multiple employer plan if that other contributing sponsor is not a member of the filer's controlled group. Applicability Section 505(e) of PPA 2006 provides that the amendments made by section 505 apply with respect to “years beginning after 2007.” We note that this applicability provision of PPA 2006 uses the term “year” rather than “plan year,” although the term “plan year” appears in other applicability provisions in PPA 2006. PBGC interprets this section of PPA to mean the amendments apply to any information year beginning after 2007. Therefore, these rules, if adopted, would apply to information years beginning after 2007. In the rare case of a short information year beginning in 2008 (for example, an information year beginning on January 1, 2008, and ending on March 31, 2008), the employer should contact PBGC to obtain a reporting extension. However, the changes made to paragraphs
(a)and
(b)of § 4010.8 (Plan actuarial information) are effective only for plan years beginning after December 31, 2007. Transition Rules Under the proposed rule, a number of valuation determinations (for instance, the 80% Funded Gateway Test, the $15 million controlled-group waiver, and the $15 million small-plan exemption from reporting actuarial information) would be made as of the valuation date for the plan year ending within the information year. For these purposes, the valuation determination is based on either the funding target attainment percentage or the 4010 funding shortfall as of the valuation date. The provisions of PPA 2006 defining funding target attainment percentage and funding shortfall apply only to plan years beginning after 2007. Therefore, for plan years beginning in 2007 but ending in information years that begin after 2007 (and thus covered by these proposed rules), the funding target attainment percentage and funding shortfall are not prescribed by statute. As a result, this proposed rule would require employers to use a surrogate for determining the funding target attainment percentage and funding shortfall for plan years beginning before January 1, 2008. PBGC's proposed surrogate would be similar to a rule proposed by Treasury in its proposed benefit restrictions rule. Section 1.436-1(j)(2)(iii) of Treasury's proposed rule provides that, for benefit restriction purposes, the funding target attainment percentage for a pre-effective plan year is determined as a fraction (expressed as a percentage), the numerator of which is the value of net plan assets, and the denominator of which is the plan's current liability on the valuation date for the last plan year that begins before 2008 (the 2007 plan year). For this purpose, the value of plan assets is determined under Code section 412(c)(2) as in effect for the 2007 plan year, except that the value of plan assets prior to subtraction of the plan's funding standard account credit balance described below can neither be less than 90 percent of the fair market value of plan assets nor greater than 110 percent of the fair market value of plan assets on the valuation date for that plan year. In addition, if a plan has a funding standard account credit balance as of the valuation date for the 2007 plan year, that balance must be subtracted from the asset value described above as of that date unless the value of plan assets is greater than or equal to 90 percent of the plan's current liability determined under Code section 412(l)(7) on the valuation date for the 2007 plan year. Finally, if the employer makes an election to reduce some or all of the funding standard carryover balance as of the first day of the first plan year beginning in 2008 in accordance with § 1.430(f)-1(e) of Treasury's proposed rule, then the present value (determined as of the valuation date for the prior year using the valuation interest rate for that prior year) of the amount so reduced is not treated as part of the funding standard account credit balance when that balance is subtracted from the value of net plan assets. PBGC's proposed rule would provide that the funding target attainment percentage for section 4010 purposes for plan years beginning before 2008 would equal the funding target attainment percentage as determined under Treasury's proposed special rule (§ 1.436-1(j)(2)(iii) of the regulation as proposed), except that:
(1)Current liability would be determined by using the highest allowable interest rate for the plan year; and
(2)there would be no special rule providing that if the value of plan assets is greater than or equal to 90 percent of the plan's current liability determined under Code section 412(l)(7) on the valuation date for the 2007 plan year, the value of assets is not reduced by the credit balance. The surrogate for 4010 funding shortfall would equal the excess, if any, of the plan's current liability over the value of plan assets. For this purpose, both current liability and plan assets would be determined in the same manner as determined for purposes of PBGC's transition rule for determining funding target attainment percentage, except that assets would not be reduced by the credit balance in the funding standard account (i.e., there would be no reduction as described in 26 CFR 1.436-1(j)(2)(iii)(B)(2) and
(3)(as proposed)). The following example demonstrates how the transition rules would work. Example. Assume Company X, which reports based on a calendar year information year, maintains Plan A, which has a plan year beginning on October 1 and ending on September 30 and an October 1 valuation date. The October 1, 2007 valuation results were as follows: actuarial value of assets of $115 million, market value of assets of $100 million and current liability of $135 million. In addition, assume the funding standard account credit balance as of September 30, 2007, was $20 million and that the employer does not elect to reduce the October 1, 2008, carryover balance at all. For the section 4010 report due on April 15, 2009, the proposed rule prescribes that the 80% Funded Gateway Test is based on the plan's funding target attainment percentage as of October 1, 2007. However, because funding target attainment percentage for purposes of ERISA section 303 applies to plan years beginning after 2007, the funding target attainment percentage is determined using a surrogate prescribed in § 4010.4(b)(3) of the proposed rule. The surrogate funding target attainment percentage is calculated as follows: First, because the 2007 actuarial value of assets is more than 10% above the market value of assets, assets are reduced to $110 million. Next, assets are reduced by the credit balance resulting in an asset value for the Funding Target Attainment Percentage of $90 million ($110 million minus $20 million). The surrogate Funding Target Attainment Percentage is the ratio of $90 million to the plan's current liability using the highest permitted rate ($135 million). So, the surrogate Funding Target Attainment Percentage is 67% ($90/$135). Since this is less than 80%, a section 4010 filing is required (unless the aggregate 4010 funding shortfall is less than $15 million). (Note that if the employer elects to reduce some, or all, of the October 1, 2008, carryover balance in accordance with the election procedures provided in 26 CFR 1.430(f)-1(e) (as proposed), the discounted value of the waived amount would be subtracted from the $20 million credit balance before the $20 million credit balance is subtracted from the $110 million adjusted asset value.) The surrogate 4010 funding shortfall is determined under § 4010.11(c)(2) and equals the excess, if any, of liability using the highest permitted rate ($135 million) over assets (after any adjustments to bring the asset value within 10% of market value). For this calculation, assets are not reduced by the credit balance. Therefore, the 4010 funding shortfall is the excess of $135 million over $110 million, or $25 million. Compliance With Rulemaking Guidelines PBGC has determined that this proposed rule is a “significant regulatory action” under Executive Order 12866. The Office of Management and Budget has therefore reviewed the proposed rule under Executive Order 12866. Pursuant to section 1(b)(1) of E.O. 12866 (as amended by Executive Order 13422), PBGC has determined that regulatory action is required in this area. Principally, this regulatory action is necessary to implement the changes made to ERISA section 4010 by PPA 2006. The proposed rule would provide guidance without which plan sponsors would have significant difficulty determining whether reporting is required. Moreover, ERISA section 4010 specifically provides that the actuarial and financial information to be reported, as well as the deadline for reporting, are as specified by PBGC in regulations. Finally, the proposed rule would provide exemptions, waivers, and reporting simplifications that reduce reporting burden for numerous plan sponsors. PBGC certifies under section 605(b) of the Regulatory Flexibility Act that the amendments in this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would implement statutory changes made by Congress. It provides guidance on how to determine whether reporting under ERISA section 4010 is required and what to report. Furthermore, PBGC is providing an exemption for controlled groups that have total plan underfunding of $15 million or less. Accordingly, as provided in section 605 of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ), sections 603 and 604 do not apply. The information requirements relating to reporting under ERISA section 4010 have been approved by the Office of Management and Budget under the Paperwork Reduction Act (OMB control number 1212-0049, expires February 29, 2008). PBGC is submitting the information requirements relating to these amendments to the Office of Management and Budget for review and approval under the Paperwork Reduction Act. (This submission also includes the information requirements relating to the current collection of 4010 information.) Copies of PBGC's request may be obtained free of charge by contacting the Disclosure Division of the Office of the General Counsel of PBGC, 1200 K Street, NW., Washington, DC 20005, 202-326-4040. PBGC expects that once the new rules take effect it will receive section 4010 filings from about 300 contributing sponsors or controlled group members annually and that the total annual burden of the collection of information will be about 2,600 hours and $5,167,500. (Detailed information on these burden estimates is included in PBGC's request.) Comments on the paperwork provisions under this proposed rule should be mailed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, via electronic mail at *OIRA_DOCKET@omb.eop.gov* or by fax to
(202)395-6974. Although comments may be submitted through April 21, 2008, the Office of Management and Budget requests that comments be received on or before March 21, 2008 to ensure their consideration. Comments may address (among other things)— • Whether the proposed collection of information is needed for the proper performance of PBGC's functions and will have practical utility; • The accuracy of PBGC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhancement of the quality, utility, and clarity of the information to be collected; and • Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. List of Subjects in 29 CFR Part 4010 Pension insurance, Pensions, Reporting and recordkeeping requirements. For the reasons given above, PBGC proposes to amend 29 CFR parts 4010 as follows. PART 4010—ANNUAL FINANCIAL AND ACTUARIAL REPORTING 1. The authority citation for part 4010 continues to read as follows: Authority: 29 U.S.C. 1302(b)(3), 1310. § 4010.1 [Amended] 2. Section 4010.1 is amended by removing the words “the PBGC under section 4010 of ERISA” and adding in their place the words “PBGC under ERISA section 4010”; and by removing the last sentence of the section (beginning with the words “This part applies * * *”). 3. In § 4010.2: a. The words “of this part” are removed from the definitions of “exempt entity,” “exempt plan,” “filer,” and “information year.” b. The definition of “exempt entity” is amended by removing the figures “4010.4(d)” and adding in their place the figures “4010.4(c)”. c. The definition of “information year” is amended by removing the words “the year” and adding in their place the words “the information year”. d. The definition of “fair market value of the plan's assets” is revised, and five new definitions are added, to read as follows: § 4010.2 Definitions. *4010 funding shortfall* means, with respect to a plan for a plan year, the 4010 funding shortfall as determined under § 4010.11(c). *At-risk status* means, with respect to a plan for a plan year, at-risk status as defined in ERISA section 303(i)(4). *Fair market value of the plan's assets* means the fair market value of the plan's assets determined without regard to any contributions receivable (i.e., contributions made after the date as of which the fair market value of the plan's assets is determined are not included). *Funding target* means, with respect to a plan for a plan year, the funding target as provided under ERISA section 303(d)(1) determined as of the valuation date for the plan year. *Funding target attainment percentage* means, with respect to a plan for a plan year, the funding target attainment percentage as determined under § 4010.4(b) for the plan year. *Valuation date* means, with respect to a plan for a plan year, the valuation date as determined under ERISA section 303(g)(2). § 4010.3 [Amended] 4. In § 4010.3, paragraph
(a)is amended by revising the paragraph heading to read “ *General* .”; by removing the words “exempt plans) and except” and adding in their place the words “exempt plans), and except” (with a comma after the closing parenthesis); by removing the words “waivers have been granted under § 4010.11” and adding in their place the words “one or more waivers under § 4010.11 apply”; by removing the words “plans maintained by members of a controlled group” and adding in their place the words “plans maintained by members of the controlled group”; by removing the words “the PBGC” (where they appear twice in the paragraph) and adding in their place each time the word “PBGC”; and by removing the words “the PBGC's” and adding in their place the word “PBGC's”. 5. In § 4010.4: a. Paragraph
(a)introductory text is amended by removing the words “paragraph (d)” and adding in their place the words “paragraph (c)”. b. Paragraph (a)(1) is amended by removing the words “The aggregate unfunded vested benefits of all plans” and adding in their place the words “For any plan”; by removing the words “any exempt plans” and adding in their place the words “an exempt plan”; and by removing the words “group exceed $50 million (disregarding those plans with no unfunded vested benefits)” and adding in their place the words “group, the funding target attainment percentage for the plan year ending within the information year is less than 80 percent”. c. Paragraph (a)(2) is amended by removing the words “a controlled group” and adding in their place the words “the controlled group”; and by removing the words “section 302(f)(1)(A) and
(B)of ERISA or section 412(n)(1)(A) and
(B)of the Code” and adding in their place the words “ERISA section 303(k) or Code section 430(k)”. d. Paragraph (a)(3) is amended by removing the words “a controlled group” and adding in their place the words “the controlled group”; by removing the words “section 303 of ERISA or section 412(d) of the Code” and adding in their place the words “ERISA section 302(c) or Code section 412(c)”; and by removing the words “(determined in according with paragraph
(c)of this section)”. e. Paragraph
(c)is removed. f. Paragraph
(d)is redesignated as paragraph (c). g. Paragraph
(b)is revised, and new paragraphs (d), (e), and
(f)are added, to read as follows: § 4010.4 Filers.
(b)*Funding target attainment percentage* —(1) *General.* Except as provided in paragraph (b)(3) of this section, the funding target attainment percentage for a plan for a plan year equals the funding target attainment percentage as provided under ERISA section 303(d)(2) determined as of the valuation date for the plan year.
(2)*Prefunding balance and funding standard carryover balance elections.* For purposes of determining the funding target attainment percentage for a plan for a plan year, prefunding balances and funding standard carryover balances must reflect any elections (or deemed elections) under ERISA section 303(f) or Code section 430(f) for the plan year, regardless of when the elections (or deemed elections) are made.
(3)*Transition rule for plan years beginning before 2008.* For plan years beginning before 2008, the funding target attainment percentage for a plan for a plan year equals the funding target attainment percentage as determined under 26 CFR 1.436-1(j)(2)(iii), *except* —
(i)Current liability is determined using the highest rate of interest allowable under Code section 412(l)(7) (as in effect for plan years beginning before 2008) for that plan year, regardless of whether that rate was actually used to determine current liability for the plan year; and
(ii)The value of net plan assets is determined without regard to the second sentence of 26 CFR 1.436-1(j)(2)(iii)(B)( *2* ) ( *i.e.* , for this purpose, there is no special rule that provides that assets are not reduced by the credit balance if the value of plan assets is greater than or equal to 90 percent of the plan's current liability).
(d)*Transition rule; failure to make required contribution; minimum funding waiver.* For plan years beginning before 2008, the reference in paragraph (a)(2) of this section to “ERISA section 303(k) or Code section 430(k)” is replaced by a reference to “ERISA section 302(f)(1)(A) and
(B)or Code section 412(n)(1)(A) and (B)”, and the reference in paragraph (a)(3) of this section to “ERISA section 302(c) or Code section 412(c)” is replaced by a reference to “ERISA section 303 or Code section 412(d)” as those provisions are in effect for plan years beginning before 2008.
(e)*Minimum funding waiver* —(1) *General.* For purposes of § 4010.4(a)(3), a portion of the minimum funding waiver for a plan is considered outstanding unless prior to the plan year ending within the information year the statutory amortization period has ended or, as of the valuation date for the plan year ending within the information year, the amortization bases are deemed to be reduced to zero pursuant to ERISA section 303(e)(5) and Code section 430(e)(5). However, the statutory amortization period will not be deemed to have ended merely because the funding waivers granted with respect to plan years beginning before 2008 are not carried over as a separate amortization base for the post-2007 plan years.
(2)*Example.* Company A sponsors Plan X, which received a minimum funding waiver of $700,000 for the plan year ending December 31, 2004, and another waiver of $500,000 for the plan year ending December 31, 2008. Assume that the amortization bases of the waivers are not reduced to zero pursuant to ERISA section 303(e)(5) and Code section 430(e)(5), and the waivers are therefore outstanding for the full five-year statutory amortization period. Also, assume Company A has a calendar information year. For the 2009 information year, Company A must report under ERISA section 4010. However, for the 2010 information year, Company A, assuming no other obligation to report under ERISA section 4010, is not required to report.
(f)*Certain plans to which special funding rules apply.* Except as described in § 4010.8(a)(9)(xiii), the provisions of sections 104, 105, 106, and 402 (as amended by U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007, Pub. L. 110-28) of PPA 2006 are disregarded for purposes of this part. 6. In § 4010.5: a. Paragraph (c)(1) is amended by adding to the end of the paragraph the words “(If any two members of the controlled group report financial information on the basis of different fiscal years, the determination of whether an entity is an exempt entity is based on a calendar year information year for purposes of this paragraph (c)(1) and § 4010.4(c).)”. b. Paragraph (c)(2) is revised and new paragraph
(d)is added to read as follows: § 4010.5 Information year.
(c)*Controlled group members with different fiscal years.*
(2)*Examples.*
(i)Companies A and B are the only members of the same controlled group, and both are contributing sponsors to nonexempt plans. Company A has a July 1 fiscal year, and Company B has an October 1 fiscal year. The information year is the calendar year. Company A's financial information with respect to its fiscal year ending June 30, 2009, and Company B's financial information with respect to its fiscal year ending September 30, 2009, must be submitted to PBGC following the end of the 2009 calendar year information year.
(ii)The facts are the same as in example
(i)except that Company B is not a contributing sponsor of a plan and would be an exempt entity using the calendar year as the information year. Because Company B is an exempt entity based on a calendar information year, it is excluded when determining the information year. Thus, the information year is the July 1 fiscal year. Note that Company B is an exempt entity even if it would not be exempt based on the July 1 information year.
(iii)The facts are the same as in example
(i)except that Company B would not be an exempt entity using the calendar year information year but would be exempt based on an information year that is the July 1 fiscal year. Since Company B is not exempt based on a calendar year information year, it may not be excluded when determining the information year. Therefore, the information year is the calendar year and Company B is not an exempt entity.
(d)*Special rules for certain plan years.* If a plan maintained by the members of the contributing sponsor's controlled group has two plan years that end in the information year or has no plan year that ends in the information year, the last plan year ending on or immediately before the end of the information year is deemed to be the plan year ending within the information year. § 4010.6 [Amended] 7. In § 4010.6: a. Paragraphs (a)(1) and (a)(2) are amended by removing the words “the PBGC's website” (which appear once in each paragraph) and adding in their place the words “PBGC's Web site”. b. Paragraphs
(b)and
(c)are amended by removing the words “the PBGC” (which appear once in each paragraph) and adding in their place the word “PBGC”. 8. In § 4010.7: a. Paragraphs
(a)introductory text and
(b)introductory text are amended by removing the words “the PBGC's website” (which appear once in each paragraph) and adding in their place the words “PBGC's Web site”. b. Paragraph (b)(2) is amended by removing the words “maintaining the plan” and adding in their place the words “maintaining the plan (if applicable)”; and by removing the words “paragraph (b)(1)” and adding in their place the words “paragraph (b)(1) of this section”. c. New paragraph
(c)is added to read as follows: § 4010.7 Identifying information.
(c)*Multiple employer plans.* A filer that is a contributing sponsor of a multiple employer plan need not provide identifying information for another contributing sponsor of the multiple employer plan if that other contributing sponsor is not a member of the filer's controlled group, and need not provide identifying information for another plan if neither the filer nor any member of the filer's controlled group is a contributing sponsor of that other plan. 9. In § 4010.8: a. Introductory text is added to the section. b. Paragraph
(a)introductory text is amended by removing the words “For each plan” and adding in their place the words “Except as provided elsewhere in this part, for each plan”; by removing the words “the PBGC's website” and adding in their place the words “PBGC's Web site”; and by removing the words “actuarial information” and adding in their place the words “actuarial information (except as specified below, determined as of the end of the plan year ending within the filer's information year)”. c. Paragraph (a)(3) is amended by removing the words “value of the plan's benefit liabilities” and adding in their place the words “amount of benefit liabilities under the plan”; by removing the words “setting forth separately the value” and adding in their place the words “setting forth separately the amount”; and by removing the words “participants, determined (in accordance with paragraph
(d)of this section) at the end of the plan year ending within the filer's information year” and adding in their place the words “participants (for this purpose, the amount of benefit liabilities equals the value of benefit liabilities determined in accordance with paragraph
(d)of this section)”. d. Paragraph (a)(4) is amended by removing the words “for interest ( *i.e.* , the specific interest rate(s), such as 5%), mortality, retirement age, and loading for administrative expenses, as”; and by removing the word “and” after the semi-colon at the end of the paragraph. e. Paragraphs (a)(5) and (a)(6) are redesignated as paragraphs (a)(9) and (a)(10) respectively. f. The introductory text of redesignated paragraph (a)(9) is amended by removing the word “information” and adding in its place the words “information for that plan year”. g. Paragraph
(v)of redesignated paragraph (a)(9) is redesignated as paragraph
(xii)of redesignated paragraph (a)(9). h. Redesignated paragraph (a)(9)(xii) is amended by removing the words “retirement factors” and adding in their place the words “retirement factors; in the case of a plan that provides lump sums, other than *de minimis* lump sums, the summary must include information on how annuity benefits are converted to lump sum amounts (for example, whether early retirement subsidies are reflected)”. i. Paragraph
(b)introductory text is amended by removing the figures “(a)(5)” and adding in their place the figures “(a)(9)”. j. Paragraphs (b)(1) and (b)(2) are amended by removing the words “the PBGC” (which appear once in each paragraph) and adding in their place the word “PBGC”. k. Paragraph (b)(2) is further amended by removing the figures “(a)(6)” and adding in their place the figures “(a)(10)”. l. Paragraphs (c)(1) and (c)(2) are redesignated as paragraphs (c)(2) and (c)(3) respectively. m. Redesignated paragraph (c)(2) is amended by removing the words “Has received” and adding in their place the words “The plan has received”; and by removing the words “section 302 of ERISA or section 412 of the Code” and adding in their pace the words “ERISA sections 302 and 303 and Code sections 412 and 430”. n. Redesignated paragraph (c)(3) is amended by removing the words “Has no” and adding in their place the words “The plan has no”; and by removing the words “§ 4010.4(e) of this part” and adding in their place the figures “§ 4010.4(a)(3)”. o. Paragraph (d)(3) is amended by removing the words “section 302(d) of ERISA or section 412( *l* ) of the Code” and adding in their place the words “section 303 of ERISA (without regard to the at-risk assumption of section 303(i) of ERISA)”. p. Paragraphs (i), (ii), (iii), (iv), (vi), (vii), and
(viii)of redesignated paragraph (a)(9), paragraph
(c)introductory text, and paragraph (d)(2) are revised, and a new introductory note before paragraph (a), new paragraphs (5), (6), (7), and
(8)of paragraph (a), new paragraphs (v), (ix), (x), (xi), (xiii), and
(xiv)of redesignated paragraph (a)(9), new paragraph (c)(1), and new paragraphs (e), (f), and
(g)are added, to read as follows: § 4010.8 Plan actuarial information. The requirements described in paragraphs
(a)and
(b)of § 4010.8 prior to their amendment to comply with the changes made to ERISA section 4010 by the Pension Protection Act of 2006 (rather than those described in paragraphs
(a)and
(b)of this section) are applicable to plan years beginning before 2008.
(a)*Required information.* * * *
(5)The funding target (as of the valuation date) for the plan year ending within the information year determined in accordance with ERISA section 303(i) as if the plan has been in at-risk status for a consecutive period of at least 5 plan years;
(6)The funding target attainment percentage (as of the valuation date) for the plan year ending within the information year;
(7)The adjusted funding target attainment percentage as defined in ERISA section 206(g)(9)(B);
(8)Whether the plan, at any time during the plan year, was subject to any of the limitations described in ERISA section 206(g) and, if so, which limitations applied, when such limitations applied, and when (if applicable) they were lifted;
(9)* * *
(i)The funding target calculated pursuant to ERISA section 303 without regard to subsection 303(i)(1), setting forth separately the value of the liabilities attributable to retirees and beneficiaries receiving payment, terminated vested participants, and active participants (showing vested and nonvested benefits separately);
(ii)A summary of the actuarial assumptions and methods used for purposes of ERISA section 303 and any change in those assumptions and methods since the previous valuation and justifications for any change; in the case of a plan that provides lump sums, other than *de minimis* lump sums, the summary must include the assumptions on which participants are assumed to elect a lump sum and how lump sums are valued;
(iii)The effective interest rate (as defined in ERISA section 303(h)(2)(A));
(iv)The target normal cost calculated pursuant to ERISA section 303 without regard to subsection 303(i)(2);
(v)For the plan year and the four preceding plan years, a statement as to whether the plan was in at-risk status for that plan year;
(vi)In the case of a plan that is in at-risk status, the target normal cost calculated pursuant to ERISA section 303 as if the plan has been in at-risk status for 5 consecutive years;
(vii)The value of the plan's assets (reflecting any averaging method) as of the valuation date and the fair market value of the plan's assets as of the valuation date;
(viii)The funding standard carryover balance and the prefunding balance (maintained pursuant to ERISA section 303(f)(1)) as of the beginning of the plan year and a summary of any changes in such balances in the past year ( *e.g.* , amounts used to offset minimum funding requirement, amounts reduced in accordance with any elections under ERISA section 303(f)(5) or Code section 430(f)(5), interest credited to such balances, and excess contributions used to increase such balances);
(ix)A list of amortization bases (shortfall and waiver) under ERISA section 303, including the year the base was established, the original amount, the installment amount, and the remaining balance at the beginning of the plan year;
(x)An age/service scatter for active participants including average compensation information for pay-related plans and average account balance information for hybrid plans presented in a format similar to that described in the instructions to the Form 5500 schedule for single-employer defined benefit plan actuarial information;
(xi)Expected disbursements (benefit payments and expenses) during the plan year;
(xiii)Details of any special funding rules that apply to the determination of the plan's minimum required contribution ( *e.g.* , special amortization schedules or interest rate assumptions applicable to certain plans of commercial airlines, or provisions for certain plans of rural cooperatives, defense contractors, or employers with PBGC settlement agreements); and
(xiv)Any other similar information as specified in instructions on PBGC's Web site; and
(c)*Exempt plan.* The actuarial information specified in this section is not required with respect to a plan if—
(1)The plan—
(i)Has fewer than 500 participants as of the end of the plan year ending within the information year and has a 4010 funding shortfall for the plan year ending within the information year that is not in excess of $15 million, or
(ii)Has benefit liabilities as of the end of the plan year ending within the filers' information year (determined in accordance with paragraph
(d)of this section) equal to or less than the fair market value of the plan's assets;
(d)*Value of benefit liabilities.* * * *
(2)*Actuarial assumptions and methods.* The value of benefit liabilities shall be determined using the assumptions and methods prescribed in §§ 4044.51 through 4044.57 of this chapter. In addition to the assumptions described in §§ 4044.51 through 4044.57, the following rules apply:
(i)*Assumptions not included in §§ 4044.51 through 4044.57.* A filer may choose whether to include assumptions for pre-retirement decrements other than mortality (such as turnover or disability assumptions), provided that if such pre-retirement decrements are used, the assumptions used are the same as those used to determine the minimum required contribution under ERISA section 303 for the plan year ending within the filer's information year. Any other assumptions used to determine the minimum required contribution that are not overridden by §§ 4044.51 through 4044.57 (assumed marital status, cost-of-living increase, if applicable, etc.) must be used when determining benefit liabilities.
(ii)*Benefits to be valued.* The value of benefit liabilities includes liabilities for all benefits accrued under the plan (including benefits that are not protected from the anti-cutback provisions of Code section 411(d)(6)) as of the end of the plan year ending within the filer's information year.
(iii)*Future service.* Future service expected to be accrued by an active participant in an ongoing plan during future employment (based on the assumptions used to determine the value of benefit liabilities) must be reflected when determining the earliest retirement age at valuation
(ERA)and unreduced retirement age
(URA)used to determine expected retirement age (XRA). (For this purpose, ERA, URA, and XRA have the meaning as provided in § 4044.2.) Such expected future service in an ongoing plan (at decrement) is also included in determining an active participant's entitlement to early retirement subsidies and supplements at XRA. (See the examples in paragraph
(e)of this section.)
(e)*Examples.* The following examples demonstrate how expected retirement age
(XRA)is determined and applied for purposes of determining benefit liabilities under paragraph
(d)of this section:
(1)*Example 1* —(i) *Facts.* Plan X has a normal retirement age of 65, but allows benefits to commence as early as age 55 for participants who complete at least 10 years service before termination. Early retirement benefits are reduced (from age 65) for participants with fewer than 25 years of service. Employee A is an active participant who is age 40 and has completed 5 years of service. Assume the “medium” XRA look-up table applies and that for purposes of § 4010.8(d), the filer has decided not to take pre-retirement decrements other than mortality into account as permitted under § 4010.8(d)(2)(i).
(ii)*Determination of XRA.* If A continues working, the earliest age A could start receiving benefits is age 55. Therefore, A's ERA is 55. Because the earliest that A can receive an unreduced benefits is when A completes 25 years of service (at age 60), A's URA is age 60. Under the medium XRA look-up table, A's XRA is 58.
(iii)*Determination of benefit liabilities.* The benefit liability is the present value of A's benefit accrued as of the measurement date assuming A retires at age 58 and elects to have payments commence immediately. Since A will not be eligible to receive unreduced benefits at that time, the accrued benefit is reduced in accordance with the plan's early retirement reduction provisions, including any subsidies to which A would be entitled under the assumption that A works until age 58.
(2)*Example 2.* Employee B is also an active participant in plan X and is age 40 with 15 years of service. B will complete 25 years of service at age 50. However, because the plan does not allow for benefit commencement before age 55, B's ERA, URA and thus, XRA are all age 55. (Note: the XRA tables in Appendix D to part 4044 do not show URA's below age 60, but links to extended tables can be found on the PBGC's Web site at the bottom of *http://www.pbgc.gov/practitioners/law-regulations-informal-guidance/content/page14763.html.* ) The benefit liability is the present value of B's benefit accrued as of the measurement date assuming B retires at age 55 and elects to commence benefits immediately. Since B will be eligible to receive an unreduced benefit at that time, the full unreduced benefit amount is valued.
(3)*Example 3* —(i) *Facts.* Assume the same facts as in Example 1, except that for purposes of § 4010.8(d), the filer has decided to take pre-retirement decrements other than mortality into account as permitted under § 4010.8(d)(2)(i). For the sake of simplicity, assume the only pre-retirement decrement other than mortality is turnover. The plan's turnover rates go from age 21 to age 54, and the retirement rates go from age 55 to age 65.
(ii)*Determination of XRA.* If A terminates employment at or before age 45, A will not be eligible to receive benefits until age 65. Therefore, the portion of Employee A that is assumed to terminate before age 45 has an ERA, URA, and XRA of 65. The portion of A that remains in service to age 45, after the application of the applicable turnover decrements, and then terminates at or after age 45, but before age 55, will be entitled to receive a reduced benefit as early as 55. Therefore, the portion of A that is assumed to terminate during this period has an ERA of 55, a URA of 65 and an XRA of 60. Since the turnover rates stop at age 55, the portion of A that remains in service to age 55 is assumed to remain in service until the XRA for that portion of A. For that portion of A, the ERA is 55, the URA is 60 and the XRA is 58. Note that for purposes of § 4010.8(d), the plan's assumed retirement rates are replaced by the XRAs.
(iii)*Determination of benefit liabilities.* The benefit liability for A is the sum of the present value of A's full accrued benefit at age 65 for the portion of A that terminates between age 40 and age 45, the present value of A's accrued benefit reduced for commencement at age 60 for the portion of A that terminates between age 45 and age 54, and the present value of A's accrued benefit reduced for commencement at age 58 for the portion of A that remains employed until age 55.
(4)*Example 4.* Assume the same facts as in Example 3, except that Employee B, the sole active participant, is age 40 with 15 years of service. The portion of B that is assumed to terminate before age 50 would be entitled to receive a reduced benefit as early as age 55 or an unreduced benefit at age 65. That portion of B has an ERA of 55, a URA of 65, and an XRA of 60. The benefit liability for that portion of B is the present value of B's benefit accrued as of the measurement date assuming B commences a reduced benefit at age 60. The portion of B that survives to age 50 would be entitled to receive an unreduced benefit as early as age 55. That portion of B has an ERA, URA and XRA of 55. The benefit liability for this portion of B is the present value of B's benefit accrued as of the measurement date assuming B retires and commences unreduced payments at age 55.
(f)*Multiple employer plans.* If, with respect to a multiple employer plan, the actuarial information required under this section 4010 for the plan year ending within the filer's information year has been filed under part 4010 by another filer, the filer may include this actuarial information by reference. The filer must include a comment in the submission reporting the name, EIN and plan number of the multiple employer plan and the name of the other filer that submitted this information. The filer is not relieved of responsibility for the filing of the actuarial information. If the information filed by the other filer is incomplete or erroneous, PBGC may assess a filing penalty against the filer.
(g)*Previous filing for plan year.* If the actuarial information for the plan year as required under this § 4010.8 has been submitted by the filer in a previous 4010 submission, the filing may include that actuarial information by reference to the previous submission. 10. In § 4010.9: a. Paragraph
(a)is amended by removing the words “the PBGC's” and adding in their place the word “PBGC's”. b. Paragraph
(d)is amended by removing the words “the PBGC” where they appear three times and adding in their place each time the word “PBGC”. c. New paragraph
(f)is added at the end of the section to read as follows: § 4010.9 Financial information.
(f)*Multiple employer plans.* A filer that is a contributing sponsor of a multiple employer plan need not provide financial information for another contributing sponsor of the multiple employer plan if that other contributing sponsor is not a member of the filer's controlled group. 11. Section 4010.10 is amended by removing the words “the PBGC” where they appear once in the section heading, once in paragraph (a), once in paragraph (b), twice in paragraph (c), twice in paragraph (d), and once in paragraph (e), and adding in their place each time the word “PBGC”. 12. In § 4010.11: a. The existing text of the section is redesignated as paragraph (b). b. Redesignated paragraph
(b)is amended by adding the paragraph heading “ *Other waiver authority.* ”; by removing the words “the PBGC” where they appear three times and adding in their place each time the word “PBGC”; by removing the word “must” where it appears twice and adding in its place each time the word “should”; and by removing the words “of this part” where they appear twice. c. The section heading is revised, and new paragraphs (a), (c), (d), and
(e)are added, to read as follows: § 4010.11 Waivers, extensions, and exclusions.
(a)*Aggregate underfunding not in excess of $15 million.* Unless reporting is required by § 4010.4(a)(2) or (a)(3), reporting is waived for an information year if, for the plan years ending within the information year, the aggregate 4010 funding shortfall for all plans (including any exempt plans) maintained by the members of the contributing sponsor's controlled group (disregarding those plans with no 4010 funding shortfall) does not exceed $15 million.
(c)*4010 funding shortfall for waivers and exemptions* —(1) *General.* Except as provided in paragraph (c)(2) of this section, a plan's 4010 funding shortfall for a plan year equals the funding shortfall as provided under ERISA section 303(c)(4) determined as of the valuation date for the plan year, except that the value of plan assets is determined without regard to the reduction under ERISA section 303(f)(4)(b).
(2)*Transition rule for plan years beginning before 2008.* For plan years beginning before 2008, a plan's 4010 funding shortfall for a plan year equals the excess, if any, of the plan's current liability over the value of plan assets. For this purpose, both current liability and plan assets are determined in the manner provided in § 4010.4(b)(3), except that assets are not reduced by the credit balance in the funding standard account.
(3)*Multiple employer plans.* For purpose of § 4010.8(c) and paragraph
(a)of this section, the entire 4010 funding shortfall of any multiple employer plan for which the filer or any member of the filers controlled group is a contributing sponsor is included.
(d)*Reduced reporting for multiple employer plans* —(1) *In general.* Reporting is waived for a contributing sponsor of a multiple employer plan if neither the contributing sponsor nor any member of the contributing sponsor's controlled group is a contributing sponsor of any other plan, provided at least one contributing sponsor (or the plan administrator on behalf of a contributing sponsor) provides a timely filing under this part 4010 containing the following information:
(i)Identifying information for each contributing sponsor of the multiple employer plan (as required under § 4010.7) determined as of the plan year ending within the contributing sponsor's information year;
(ii)Actuarial information for the multiple employer plan (as required under § 4010.8) for the plan year ending within the contributing sponsor's information year; and
(iii)Financial information as required § 4010.9 (or such reduced information as PBGC may provide on its Web site) for every contributing sponsor of the multiple employer plan who, for a salary related plan formula, is one of the ten largest contributing sponsors based on required contributions for the plan year ending within the contributing sponsor's information year, or, for an hourly plan formula, is one of the ten largest contributing sponsors based on number of participants for the plan year ending within the contributing sponsor's information years (using the census data as determined under § 4010.8(d)(1)).
(2)*Information year.* For purposes of this paragraph
(d)(including determining when a filing is due), if any two contributing sponsors report financial information on the basis of different fiscal years, the information year shall be the calendar year.
(e)*Terminated plans.* A plan may be excluded for purposes of §§ 4010.4(a)(1) and (3), 4010.8, and 4010.11(a) and (d), if, on or before the last day of the information year, all of the assets (excluding excess assets) have been distributed pursuant to a standard termination under Subpart B of part 4041 of this chapter. § 4010.12 [Amended] 13. Section 4010.12 is amended by removing the words “section 4010(c) of ERISA” and adding in their place the words “ERISA section 4010(c)”; and by removing the words “the PBGC” and adding in their place the word “PBGC”. § 4010.13 [Amended] 14. Section 4010.13 is amended by removing the words “section 4071 of ERISA” and adding in their place the words “ERISA section 4071”; and by removing the words “the PBGC” where they appear twice and adding in their place each time the word “PBGC”. Issued in Washington, DC, this 14th day of February, 2008. Charles E.F. Millard, Director, Pension Benefit Guaranty Corporation. [FR Doc. E8-3124 Filed 2-19-08; 8:45 am] BILLING CODE 7709-01-P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 1 [Docket No.: PTO-P-2005-0027] RIN 0651-AB99 Revision to the Time for Filing of a Biological Deposit and the Date of Availability of a Biological Deposit AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Notice of proposed rulemaking. SUMMARY: This notice proposes changes to the rules of practice to require that any deposit of biological material be made before publication of a patent application, and that all restrictions on access to the deposited material imposed by the depositor be removed upon publication. The proposed changes will provide that the public has access to biological materials referenced in the disclosure of a patent application to the same extent that access to the remainder of the disclosure is available. The public policy basis for allowing access to a referenced item is the same whether the item is another patent application or a deposited biological material. DATES: To be ensured of consideration, written comments must be received on or before April 21, 2008. No public hearing will be held. ADDRESSES: Comments should be sent by e-mail addressed to *AB99.Comments@uspto.gov.* Comments may also be submitted by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA, 22313-1450, or by facsimile to
(571)273-7754, marked to the attention of Kathleen Kahler Fonda. Although comments may be submitted by mail or facsimile, the Office prefers to receive comments via the Internet. If comments are submitted by mail, the Office prefers that the comments be submitted on a DOS formatted 3 1/2 inch disk accompanied by a paper copy. Comments may also be sent by e-mail via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site ( *http://www.regulations.gov* ) for additional instructions on providing comments via the Federal eRulemaking Portal. The comments will be available for public inspection at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available via the Office Internet Web site (address: *http://www.uspto.gov* ). Because comments will be made available for public inspection, information that is not desired to be made public, such as an address or phone number, should not be included in the comments. FOR FURTHER INFORMATION CONTACT: Kathleen Kahler Fonda, Legal Advisor, Office of the Deputy Commissioner for Patent Examination Policy, by telephone at
(571)272-7754; by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA, 22313-1450; or by facsimile to
(571)273-7754, marked to the attention of Kathleen Kahler Fonda. SUPPLEMENTARY INFORMATION: Under 35 U.S.C. 112, first paragraph, the disclosure of a patent application must contain a written description that enables a person skilled in the art to make and use the claimed invention. The Supreme Court has consistently recognized that, in exchange for the rights associated with a patent grant, an inventor must disclose his invention in such a manner that would allow the public to make and use it without undue experimentation. *See Universal Oil Prods. Co.* v. *Globe Oil & Refining Co.,* 322 U.S. 471, 484, 61 USPQ 382, 388
(1944)(“But the quid pro quo is disclosure of a process or device in sufficient detail to enable one skilled in the art to practice the invention once the period of the monopoly has expired * * *.”); *Brenner* v. *Manson,* 383 U.S. 519, 534, 148 USPQ 689, 695
(1966)(“The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility.”); *J.E.M. AG Supply, Inc.* v. *Pioneer Hi-Bred Int'l, Inc.,* 534 U.S. 124, 142, 60 USPQ2d 1865, 1873
(2001)(“The disclosure required by the Patent Act is ‘the quid pro quo of the right to exclude.’ ” (quoting *Kewanee Oil Co.* v. *Bicron Corp.,* 416 U.S. 470, 484, 181 USPQ 673, 679 (1974))). The American Inventors Protection Act of 1999
(AIPA)(Title IV of the Intellectual Property and Communications Omnibus Reform Act of 1999 (S. 1948) as introduced in the 106th Congress on November 17, 1999) was incorporated and enacted into law on November 29, 1999, by 1000(a)(9), Division B, of Public Law 106-113, 113 Stat. 1501 (1999). The AIPA provided for publication of patent applications eighteen months after the earliest date for which priority benefit was sought (amending title 35 of the United States Code to add paragraph
(b)to section 122). In exchange for this pre-issue public disclosure, the AIPA also provided a provisional right under 35 U.S.C. 154(d) to obtain a reasonable royalty if the invention as claimed in the published patent application is substantially identical to the invention claimed in any patent that might issue therefrom, and certain other conditions are met. In amending 35 U.S.C. 122, Congress made it clear that only those patent application publications which provide an enabling disclosure of the claimed invention would be entitled to provisional rights under 35 U.S.C. 154(d). Although the AIPA allowed for certain applications to be published in redacted form, any redacted application was nevertheless required to contain a disclosure that would allow a person skilled in the art to make and use the subject matter of the claim. “The provisions of section 154(d) shall not apply to a claim if the description of the invention published in the redacted application filed under this clause with respect to the claim does not enable a person skilled in the art to make and use the subject matter of the claim.” 35 U.S.C. 122(b)(2)(B)(v). By allowing for provisional rights only where the patent publication contains an enabling disclosure, Congress again reinforced the notion that exchange for the rights associated with a patent grant an inventor must disclose his invention in such a manner that would allow the public to make and use it without undue experimentation. When an invention involves biological material, sometimes words and drawings alone cannot sufficiently describe how to make and use it. As a supplement to the printed written description of an invention, courts have sanctioned a procedure in which biological material may be deposited with an appropriate holding facility under conditions which ensure that the sample is properly maintained, and made available to others when appropriate. For biological inventions, for which providing a description in written form is not practicable, one may nevertheless comply with the written description requirement by publicly depositing the biological material * * *. Such description is the quid pro quo of the patent system; the public must receive meaningful disclosure in exchange for being excluded from practicing the invention for a limited period of time. *Enzo Biochem, Inc.* v. *Gen-Probe, Inc.,* 323 F.3d 956, 970, 63 USPQ2d 1609, 1617 (Fed. Cir. 2002). Internationally, the deposit of biological materials is governed by the Budapest Treaty. The proposed rule change brings the Office practice regarding biological deposits in line with the publication of patent applications under AIPA. Courts have consistently recognized that an applicant must have provided the Office with an enabling disclosure no later than the time an invention is disclosed to the public. Prior to publication of patent applications under the AIPA, disclosure occurred simultaneously with patent issuance. Thus, earlier court decisions held that deposits needed to be perfected at the time the patent became public, i.e., at the issue date. For example, in *In re Hawkins* the court stated that “the function of section 112 in ensuring complete public disclosure is only violated if the disclosure is not complete at the time it is made public, i.e., at the issue date.” *In re Hawkins,* 486 F.2d 569, 574, 179 USPQ 157, 161 (CCPA 1973). In *In re Argoudelis,* the court specifically referred to the regulation concerning conditions for making a patent application public, 37 CFR 1.14, when it stated, “The cultures are to be made available to the public upon issuance of a United States patent which refers to such deposit and prior to issuance of said patent under the conditions specified in Rule 14.” *In re Argoudelis,* 434 F.2d 1390, 1393, 168 USPQ 99, 102 (CCPA 1970). In the era since *Hawkins* and *Argoudelis* were decided, Congress changed the law to require that most patent applications be published eighteen months after filing, and to grant provisional rights under certain conditions. Publication of patent applications under the AIPA means that the patent issue date is no longer “the time [the patent disclosure] is made public,” or the time when “the conditions of Rule 14 are met.” At least one commentator has stated that a result of the changes brought about by the AIPA is that there is now a requirement for release of a biological deposit at publication. *See* Michelle Henderson, “International Harmonization Brought about by the American Inventors Protection Act Compels Early Release of the Biological Deposit,” 42 IDEA: The Journal of Law and Technology 361 (2002). In a more recent case involving enablement supported by a biological deposit, the Federal Circuit held that “the availability of a sample to the public after the patent has issued will meet the enablement requirement.” *In re Lundak,* 773 F.2d 1216, 1223, 227 USPQ 90, 95 (Fed. Cir. 1985). Although on its face *Lundak* might seem to support delaying public access to a deposit until issue, *Lundak* was decided before provisional rights under the AIPA were instituted. Like the decisions in *Argoudelis* and *Hawkins,* the rule established in *Lundak* is superseded by the AIPA. The Office did not implement a rule change requiring unrestricted access to biological deposits referenced in published patent applications at the time the patent application publication rules were put in place because a report to Congress required by the AIPA was still pending at that time. Section 4805 of the AIPA required that the Comptroller General (in consultation with the Office) conduct a study and submit a report to Congress on the potential risks to the biotechnology industry in the United States relating to release of biological material deposited in support of biotechnology patents, and that the Office consider the recommendations of such study in drafting regulations affecting deposits of biological material (including any modification of § 1.801 *et seq.* ). The study required by Section 4805 of the AIPA was completed in October of 2000. *See Deposits of Biological Materials in Support of Certain Patent Applications,* GAO-01-49 (Oct. 2000). This report may be obtained:
(1)By mail addressed to the Government Accountability Office, 441 G Street, NW., Washington, DC 20548;
(2)by telephone at
(202)512-6000, facsimile at
(202)512-6061, or TDD
(202)512-2537; or
(3)via the Government Accountability Office's Internet Web site at *http://www.gao.gov.* The Office had previously proposed changes to § 1.809 in order to reduce delays after allowance of a patent application. *See Changes to Implement the Patent Business Goals,* 64 FR 53771 (Oct. 4, 1999), 1228 *Off. Gaz. Pat. Office* 15 (Nov. 2, 1999) (proposed rule). The GAO study did not contain any recommendations related to the Office's proposal to amend § 1.809 to revise the time period within which a deposit of biological material (if needed) must be made after allowance of an application. Accordingly, the Office has already amended § 1.809 to provide that the period of time within which the deposit must be made in order to avoid abandonment is not extendable under § 1.136(a) or
(b)if set forth in a “Notice of Allowability” or in an Office action having a mail date on or after the mail date of a “Notice of Allowability.” *See Changes to the Time Period for Making any Necessary Deposit of Biological Material,* 66 FR 21090 (April 27, 2001), 1246 *Off. Gaz. Patent Office* 42 (May 22, 2001) (final rule). As to release of the deposit before issuance of the application, the GAO study noted the concern of the biotechnology industry that the public could obtain the deposit and reproduce the invention with minimal effort and expense, but “found no documented cases of a person or an organization having ever obtained a sample of a biological deposit and then using it to infringe on the patent.” GAO-01-49 at 4. Nevertheless, the report concluded that “the statute does not require an associated release of a biological deposit concurrent with 18-month publication because even though the application may refer to the biological deposit, the deposit itself is not part of the application.” GAO-01-49 at 5. Although no reference is provided, the report appears to be relying for support of this assertion on the CCPA's statement in *In re Argoudelis* that “[t]he deposits are not a part of the patent application * * *. ” 434 F.2d 1390, 1394, 168 USPQ 99, 103 (CCPA 1970). The focus in *Argoudelis,* however, appears to have been on an Office position that the Office did not control the deposited material for the purpose of ensuring continued enablement, and in no way implied that the application complied with 35 U.S.C. 112 without the deposit. This passage places the quote in context: The only rational ground for concern on the part of the Patent Office appears to be for the permanent availability of the deposited microorganism. The deposits are not a part of the patent application, and the Patent Office exercises no control over them. This concern may be justified in some situations. *Id* . at 1393-94, 168 USPQ at 103. Moreover, the *Argoudelis* court recognized that the deposit would be withheld from the public in accordance with the United States Patent Office Rules of Practice, Rule 14. *Id* . at 1391, 168 USPQ at 101 (quoting cover letter from the appellant to the depository accompanying the deposit). As a result, although the deposit was not physically within the application file, the Office's rules related to access to application files still governed access to the deposit. Thus, while the GAO's statement is true insofar as the deposit is not physically part of the application, a deposit is part of the application in the sense that an applicant's disclosure may be non-enabling or not adequately described without it. The proposed requirement for unrestricted access to a deposited biological material upon publication of a patent application that makes reference to it will ensure that the public has the same level of access to the disclosure of an invention involving biological materials as it does to the disclosure of any other category of invention. With few limited exceptions, the patent statutes do not distinguish among different fields of endeavor. Significantly, section 122 of Title 35 does not authorize the Office to refrain from making some portion of an applicant's disclosure public simply because it is in the form of a deposit of biological material. Parity of treatment regardless of the type of invention involved has been espoused by the Federal Circuit, which stated recently that this court accords the same treatment to all forms of invention. *Eolas Techs Inc.* v. *Microsoft Corp.* , 399 F.3d 1325, 1339, 73 USPQ2d 1782, 1794 (Fed. Cir. 2005) (citing TRIPs Agreement, Part II, Section 5
(1994)(“[P]atents shall be available and patent rights enjoyable without discrimination as to the place of invention[ ][and] the field of technology * * *.”)). By providing for unrestricted access to deposited material upon publication, the Office will ensure that uniform standards for public release of a patent disclosure apply regardless of the field of the invention. In order to ensure that the public receives a meaningful disclosure of an invention in a patent application publication, provisional rights may accrue to the patentee only if the claims in the patent are substantially identical to those in the published application. *See* 35 U.S.C. 154(d). The specification of a patent application must also comply with 35 U.S.C. 112. *See* 35 U.S.C. 111(b)(1)(A). If a deposit of biological material to comply with 35 U.S.C. 112 is necessary to preserve the availability of provisional rights under 35 U.S.C. 154(d), the disclosure of the invention must contain a specific reference to a depository accession number of the biological material, or be amended to contain such a reference in sufficient time to allow for the accession number to be included in the patent application publication. A reference to an accession number which appears in papers related to a patent application but not in the disclosure itself is not sufficient. Although application-related papers are generally made available to the public upon publication of the application, *see* § 1.14(a)(1)(ii) and (iii), such papers are not part of the disclosure of the patent or patent application publication itself. As a result, if the patent application itself is not originally filed with a reference to the accession number, a substitute specification in compliance with § 1.125(b) should be filed at least four months before the projected publication date of the patent application publication in order to ensure that the reference to the deposit is included in the patent application publication. The Office serves as a guardian of the public interest when it examines patent applications and issues those which meet statutory requirements, including the requirement of an adequate disclosure. *See In re Russell* , 439 F.2d 1228, 1230, 169 USPQ 426, 428 (CCPA 1971) (“[T]here is a public interest in *granting* valid patents * * * .”). By instituting the proposed rule changes, the Office will ensure that patent application publication documents requiring a deposit of biological material to comply with the disclosure requirements of 35 U.S.C. 112, first paragraph, will be fully available as prior art as of the date of publication. If a patent application publication does not comply with the disclosure requirements of 35 U.S.C. 112, first paragraph, as of its publication date, the patent application publication cannot serve as anticipatory prior art under 35 U.S.C. 102(a) and (b), and possibly (e). *See Elan Pharms., Inc.* v. *Mayo Found* . *for Med. Educ. & Research* , 346 F.3d 1051, 1054, 68 USPQ2d 1373, 1375 (Fed. Cir. 2003) (“To serve as an anticipating reference, the reference must enable that which it is asserted to anticipate.”) (quoting *Amgen, Inc.* v. *Hoechst Marion Roussel, Inc.* , 314 F.3d 1313, 1354, 65 USPQ2d 1385, 1416 (Fed. Cir. 2003) (“A claimed invention cannot be anticipated by a prior art reference if the allegedly anticipatory disclosures cited as prior art are not enabled.”); *Bristol-Myers Squibb* v. *Ben Venue Labs., Inc.,* 246 F.3d 1368, 1374, 58 USPQ2d 1508, 1512 (Fed. Cir. 2001) (“To anticipate, the reference must also enable one of skill in the art to make and use the claimed invention.”); *PPG Indus., Inc.* v. *Guardian Indus. Corp.* , 75 F.3d 1558, 1566, 37 USPQ2d 1618, 1624 (Fed. Cir. 1996) (“To anticipate a claim, a reference must disclose every element of the challenged claim and enable one skilled in the art to make the anticipating subject matter.”). Absent a requirement for deposit prior to publication coupled with release of the deposited material upon publication, an otherwise anticipatory patent application publication could fail to qualify as prior art. It is not in the public interest to allow arbitrariness in the date of deposit to disqualify a patent application publication as prior art, when the publication otherwise fully discloses an invention. The proposed rule changes take steps to ensure that patent application publications will be available as prior art as of their publication date, and can therefore be used to prevent issuance of patents which do not represent a contribution to public knowledge. *See Constant* v. *Advanced Micro-Devices, Inc.,* 848 F.2d 1560, 1564, 7 USPQ2d 1057, 1059 (Fed. Cir. 1988) (“Public policy requires that only inventions which fully meet the statutory standards are entitled to patents.”). A requirement for deposit of the biologic material prior to publication would be a significant step toward harmonizing United States practice with that of the European Patent Office (EPO). The proposed rules require that a deposit necessary for compliance with 35 U.S.C. 112 be made before technical preparations for publication of the application as a patent application publication have begun, whereas in Europe any deposit necessary for compliance with the disclosure requirement of Article 83 of the European Patent Convention
(EPC)must have been made at or before filing. EPC Rule 28(1)(a). Thus the timing requirements for deposits are not identical, and even under the proposed rules it would remain the case that an EP application risks losing benefit of a United States priority application unless the deposit had been made at or before filing in the United States. However, under the proposed changes to § 1.809(e), as well as under EPC Rule 28(2)(a), an amendment to a patent application to make reference to a deposit must be made in sufficient time so that the reference will be included in the patent application publication. Thus members of the interested public, for both U.S. applications and those filed in the EPO, will be informed of the existence of the deposited material and be able to request its release upon publication at eighteen months. Discussion of Specific Rules Title 37 of the Code of Federal Regulations, Part 1, is proposed to be amended as follows: *Section 1.77:* Section 1.77 is proposed to be amended by revising paragraph (b)(1) to delete “, which may be accompanied by an introductory portion stating the name, citizenship, and residence of the applicant (unless included in the application data sheet),” by redesignating paragraphs (b)(6) through (b)(12) as paragraphs (b)(7) through (b)(13), adding a new paragraph (b)(6), and revising paragraph (c). Having the name, citizenship and residence of each applicant on the title page suggests that such information should be changed if the information changes, and to avoid any need for an amendment, this information should not be included on the title page. New paragraph (b)(6) would provide a section heading for a reference to a deposit of biological material. Paragraph
(c)is proposed to be revised to refer to paragraph
(b)in general rather than each of the numbered paragraphs of
(b)so that if paragraph
(b)is amended in the future, no amendments would be required to paragraph (c). *Section 1.163:* Section 1.163 is amended by revising paragraph (c)(1) to delete “, which may include an introductory portion stating the name, citizenship, and residence of the applicant,” redesignating paragraphs (c)(6) through (c)(11) as paragraphs (c)(7) through (c)(12), and adding a new paragraph (c)(6) to provide a section heading for a reference to a deposit of biological material. *Section 1.804:* Section 1.804 is proposed to be amended to provide that if a biological material is necessary to preserve the availability of provisional rights under 35 U.S.C. 154(d), the deposit of the biological material must be made prior to filing an application or during the pendency of an application, provided that the deposit is made before technical preparations for publication of the application as a patent application publication have begun ( *see* § 1.215(a)). *Section 1.808:* Section 1.808(a)(1) is proposed to be amended to change “122” to “122(a)” and to make grammatical corrections. Section 1.808(a)(2) is proposed to be amended to provide that all restrictions imposed by the depositor will be irrevocably removed upon the earlier of publication of the application under § 1.211 and 35 U.S.C. 122(b) or grant of the patent, and to indicate that the rule applies regardless of whether the deposit was made to satisfy a statutory provision. Section 1.808(b) is amended to add “before the patent is granted or” before “term of the patent.” Section 1.808(c) is amended to provide that the Office will, on request, certify that an application referring to the deposit has been filed, that the subject matter of that application involves the deposited biological material or the use thereof, that the application has been published or patented or is otherwise open to public inspection, and that the requesting party has a right to a sample of the biological material. This is the certification called for in Rule 11.3 of the Regulations Under the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure. A form, BP/12, is provided on the World Intellectual Property Organization's Internet Web site ( *http://www.wipo.int* ) for this purpose. Section 1.808(c)(3) is also proposed to be revised to require the application number referring to the deposit, as well as either the patent application publication number and publication date, or the patent number and issue date of the patent, instead of only the patent number and issue date. *Section 1.809:* Section 1.809(a) is proposed to be amended to clarify that the examiner's rejection may be under any appropriate statutory provision. Section 1.809(b)(1) is proposed to be amended to delete “either” and “, or assuring the Office in writing that an acceptable deposit will be made.” Section 1.809(b)(2) is proposed to be amended to delete the text after “nonresponsive” and to insert in place thereof “A request to hold the making of the deposit in abeyance will not be considered a bona fide attempt to advance the application to final action (§ 1.135(c)).” Section 1.809(c) is proposed to be amended to delete “and the Office has received a written assurance that an acceptable deposit will be made.” Section 1.809(e) is proposed to be amended to delete “before or with the payment of the issue fee ( *see* § 1.312)” and to insert “(1) within a period of sixteen months after the date of filing of the application or, if the benefit of an earlier filing date is sought under 35 U.S.C. 119(e), 120, 121, or 365(c), within the later of four months of the actual filing date of the later-filed application and sixteen months from the filing date of the prior-filed application; and
(2)before or with any request for early publication (§ 1.219).” Of course, § 1.312 continues to apply, and the amendment cannot be filed after payment of the issue fee. By providing that the amendment should be filed at a set time related to publication of the application, the application should be published with the required deposit information. Rulemaking Considerations *Administrative Procedure Act:* This notice does not propose to add any new fees or new requirements to the rules of practice. Rather, this notice proposes to change the time period for compliance with existing requirements of the rules of practice in 37 CFR 1.801 *et seq.* Therefore, the changes proposed in this notice involve only rules of agency practice and procedure under 5 U.S.C. 553(b)(B). *See Bachow Communications Inc.* v. *FCC* , 237 F.3d 683, 690 (DC Cir. 2001) (rules governing an application process are “rules of agency organization, procedure, or practice” and are exempt from the Administrative Procedure Act's notice and comment requirement) and *JEM Broadcasting Co.* v. *FCC* , 22 F.3d 320, 327 (DC Cir. 1994) (rule under which any flawed application is summarily dismissed without allowing the applicant to correct its error is merely procedural despite its sometimes harsh effects on applicants); *see also Fressola* v. *Manbeck* , 36 USPQ2d 1211, 1215 (D.D.C. 1995) (“it is extremely doubtful whether any of the rules formulated to govern patent or trade-mark practice are other than ‘interpretive rules, general statements of policy, * * * procedure, or practice.’ ”) (quoting C.W. Ooms, *The United States Patent Office and the Administrative Procedure Act* , 38 Trademark Rep. 149, 153 (1948)). Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553(b) or
(c)or any other law. Nevertheless, the Office is seeking public comment on proposed changes to these rules of practice to obtain the benefit of such input. *Regulatory Flexibility Act:* As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 (or any other law), neither an initial regulatory flexibility analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are required. *See* 5 U.S.C. 603. Nevertheless, for the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that the changes proposed in this notice will not have a significant economic impact on a substantial number of small entities. *See* 5 U.S.C. 605(b). The principal impacts of the changes proposed in this notice are changes to the rules of practice to:
(1)Require that any deposit of biological material be made before publication of a patent application; and
(2)provide that all restrictions on access to the deposited material imposed by the depositor be removed upon publication. The Office estimates that there are approximately 1,000 patent applications filed each year (both small entity and other than small entity) that are supplemented (either on filing or later) by a deposit of biological material. This notice does not propose any new fees or new requirements for such applications, but is simply proposing to change the time period for compliance with existing requirements of the rules of practice to ensure that the public has access to biological materials referenced in the disclosure of a patent application to the same extent that access to the remainder of the disclosure is available. Therefore, the changes proposed in this notice will not have a significant economic impact on a substantial number of small entities. *Executive Order 13132:* This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). *Executive Order 12866:* This rule making has been determined to be significant for purposes of Executive Order 12866 (Sept. 30, 1993). *Paperwork Reduction Act:* This notice involves information collection requirements which are subject to review by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The collections of information involved in this notice have been reviewed and previously approved by OMB under OMB control numbers 0651-0022 and 0651-0032. The United States Patent and Trademark Office is not resubmitting any information collection package to OMB for its review and approval because the changes in this notice do not affect the information collection requirements associated with the information collection under these OMB control numbers. The principal impacts of the changes proposed in this notice are changes to the rules of practice to:
(1)Require that any deposit of biological material be made before publication of a patent application; and
(2)provide that all restrictions on access to the deposited material imposed by the depositor be removed upon publication. Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden, to Robert A. Clarke, Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, or to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. List of Subjects in 37 CFR Part 1 Administrative practice and procedure, Inventions and patents, Lawyers. For the reasons set forth in the preamble, 37 CFR part 1 is proposed to be amended as follows: PART 1—RULES OF PRACTICE IN PATENT CASES 1. The authority citation for 37 CFR part 1 continues to read as follows: Authority: 35 U.S.C. 2(b)(2). 2. Section 1.77 is amended by redesignating paragraphs (b)(6) through (b)(12) as paragraphs (b)(7) through (b)(13), adding a new paragraph (b)(6), and revising paragraphs (b)(1) and
(c)to read as follows: § 1.77 Arrangement of application elements.
(b)* * *
(1)Title of the invention.
(6)Reference to a deposit of biological material.
(c)The text of the specification sections defined in paragraph
(b)of this section, if applicable, should be preceded by a section heading in uppercase and without underlining or bold type. 3. Section 1.163 is amended by redesignating paragraphs (c)(6) through (c)(11) as paragraphs (c)(7) through (c)(12), revising paragraph (c)(1), and adding a new paragraph (c)(6) to read as follows: § 1.163 Specification and arrangement of application elements in a plant application.
(c)* * *
(1)Title of the invention.
(6)Deposit of biological material. 4. Section 1.804 is amended by revising paragraph
(a)to read as follows: § 1.804 Time of making an original deposit in order to preserve availability of provisional rights under 35 U.S.C. 154(d).
(a)If deposit of a biological material is necessary to preserve the availability of provisional rights under 35 U.S.C. 154(d), an original deposit of the biological material must be made either before the application is filed or during pendency of the application provided that the deposit is made before technical preparations for publication of the application as a patent application publication have begun (see § 1.215(a)). 5. Section 1.808 is revised to read as follows: § 1.808 Furnishing of samples.
(a)A deposit must be made under conditions that assure that:
(1)Access to a deposit will be available during pendency of a patent application making reference to the deposit to one determined by the Director to be entitled thereto under § 1.14 and 35 U.S.C. 122(a), and
(2)Subject to paragraph
(b)of this section, all restrictions imposed by the depositor on the availability to the public of the deposited material will be irrevocably removed upon the earlier of publication of the application under § 1.211 and 35 U.S.C. 122(b) or grant of the patent, and any deposit referenced in a patent application publication or patent will be available to the public upon publication or patenting, regardless of whether the deposit was necessary for compliance with any statutory provision.
(b)The depositor may contract with the depository to require that samples of a deposited biological material shall be furnished only if a request for a sample, before the patent is granted or during the term of the patent:
(1)Is in writing or other tangible form and dated;
(2)Contains the name and address of the requesting party and the accession number of the deposit; and
(3)Is communicated in writing by the depository to the depositor along with the date on which the sample was furnished and the name and address of the party to whom the sample was furnished.
(c)Upon request made to the Office, the Office will certify that an application referring to the deposit has been filed and that the subject matter of that application involves the deposited biological material or the use thereof, that the application has been published or patented or is otherwise open to public inspection, and the certified party has a right to a sample of the biological material, provided the request contains:
(1)The name and address of the depository;
(2)The accession number given to the deposit;
(3)The application number referring to the deposit and any patent application publication number and publication date, or patent number and issue date of the patent; and
(4)The name and address of the requesting party. 6. Section 1.809 is amended by revising paragraphs (a), (b), (c), and
(e)to read as follows: § 1.809 Examination procedures.
(a)The examiner shall determine pursuant to § 1.104 in each application for patent, application for reissue patent or reexamination proceeding if a deposit is needed, and if needed, if a deposit actually made is acceptable for patent purposes. If a deposit is needed and has not been made or replaced or supplemented in accordance with these regulations, the examiner, where appropriate, shall reject the affected claims under the appropriate statutory provision, explaining why a deposit is needed and/or why a deposit actually made cannot be accepted.
(b)The applicant for patent or patent owner shall reply to a rejection under paragraph
(a)of this section by:
(1)In the case of an applicant for patent, making an acceptable original, replacement, or supplemental deposit; or, in the case of a patent owner, requesting a certificate of correction of the patent which meets the terms of paragraphs
(b)and
(c)of § 1.805, or
(2)Arguing why a deposit is not needed under the circumstances of the application or patent considered and/or why a deposit actually made should be accepted. Other replies to the examiner's action shall be considered nonresponsive. A request to hold the making of the deposit in abeyance will not be considered a bona fide attempt to advance the application to final action (§ 1.135(c)).
(c)If an application for patent is otherwise in condition for allowance except for a needed deposit, applicant will be notified and given a period of time within which the deposit must be made in order to avoid abandonment. This time period is not extendable under § 1.136(a) or
(b)if set forth in a “Notice of Allowability” or in an Office action having a mail date on or after the mail date of a “Notice of Allowability” (see § 1.136(c)).
(e)An amendment required by paragraphs (d)(1), (d)(2) or (d)(4) of this section for a biological deposit that is necessary to preserve provisional rights under 35 U.S.C. 154(d) must be filed:
(1)Within a period of sixteen months after the date of filing of the application or, if the benefit of an earlier filing date is sought under 35 U.S.C. 119(e), 120, 121, or 365(c), within the later of four months of the actual filing date of the later-filed application and sixteen months from the filing date of the of the prior-filed application; and
(2)Before or with any request for early publication (§ 1.219). Dated: February 13, 2008. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E8-3084 Filed 2-19-08; 8:45 am] BILLING CODE 3510-16-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2007-0633; A-1-FRL-8517-5] Approval and Promulgation of Air Quality Implementation Plans; Maine; Conformity of General Federal Actions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing to approve a State Implementation Plan
(SIP)revision submitted by the State of Maine for the purpose of making the SIP consistent with recent additions to the Federal general conformity regulation. This revision incorporates by reference new definitions and establishes de minimis emission levels for fine particular matter (PM <sup>2.5</sup> ) into Maine's existing general conformity criteria and procedures previously approved into the Maine SIP. DATES: Written comments must be received on or before March 21, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-OAR-2007-0633 by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: arnold.anne@epa.gov.* 3. *Fax:*
(617)918-0047. 4. *Mail:* “EPA-R01-OAR-2007-0633”, Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023. 5. *Hand Delivery or Courier. Deliver your comments to:* Anne Arnold, Manager, Air Quality Planning Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. Please see the direct final rule which is located in the Rules Section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Donald O. Cooke, Air Quality Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, telephone number
(617)918-1668, fax number
(617)918-0668, e-mail *cooke.donald@epa.gov.* SUPPLEMENTARY INFORMATION: In the Final Rules Section of this **Federal Register** , EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules Section of this **Federal Register.** Dated: January 9, 2008. Robert W. Varney, Regional Administrator, EPA New England. [FR Doc. E8-2883 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2007-0150-200711(b); FRL-8528-7] Approval and Promulgation of Implementation Plans for Air Quality Planning Purposes; Georgia: Early Progress Plan for the Atlanta 8-Hour Ozone Nonattainment Area AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: On December 31, 2006, the State of Georgia, through the Environmental Protection Division of the Georgia Department of Natural Resources, submitted a voluntary State Implementation Plan
(SIP)revision requesting approval of an Early Progress Plan for the sole purpose of establishing motor vehicle emission budgets (MVEBs) for the Atlanta 8-hour ozone nonattainment area. The Atlanta 8-hour ozone nonattainment area is comprised of the following twenty counties: Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Hall, Henry, Newton, Paulding, Rockdale, Spalding and Walton counties in their entireties (hereafter referred to as the “Atlanta 8-Hour Ozone Area”). EPA is proposing to approve Atlanta's Early Progress Plan, including the new regional MVEBs for nitrogen oxides and volatile organic compounds for 2006. This proposed approval of the Early Progress Plan for the Atlanta 8-Hour Ozone Area is based on EPA's determination that Georgia has demonstrated that the SIP revision containing these MVEBs, when considered with the emissions from all sources, shows some progress toward attainment from the base year (i.e., 2002) through an interim target year (i.e., 2006). In the Final Rules Section of this **Federal Register** , EPA is approving the SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no significant, material, and adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this document. Any parties interested in commenting on this document should do so at this time. DATES: Written comments must be received on or before March 21, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2007-0150, by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: Benjamin.lynorae@epa.gov.* 3. *Fax:*
(404)562.9019. 4. *Mail:* EPA-R04-OAR-2007-0150, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. *Hand Delivery or Courier:* Lynorae Benjamin, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Lynorae Benjamin, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is
(404)562-9040. Ms. Benjamin can also be reached via electronic mail at *Benjamin.lynorae@epa.gov* . SUPPLEMENTARY INFORMATION: For additional information, see the direct final rule which is published in the Rules Section of this **Federal Register** . Dated: February 6, 2008. J.I. Palmer, Jr., Regional Administrator, Region 4. [FR Doc. E8-2709 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2007-0122; FRL-8528-6] Revisions to the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to correct our May 2004 final approval of revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or “District”) portion of the California State Implementation Plan (SIP). We are also proposing to approve two 2006 revisions to these rules that the California Air Resources Board submitted to EPA in December 2006. Our correction to our May 2004 approval and our proposed approval of the District's 2006 revisions conform the District's rules to a State law generally known as Senate Bill 700 by explicitly limiting the applicability of new source permitting requirements to certain minor sources and limiting the applicability of offset requirements for all minor agricultural sources consistent with criteria identified in state law. We are proposing to correct our May 2004 final approval pursuant to section 110(k)(6) of the Clean Air Act (CAA or “Act”). We are proposing to approve the District's 2006 revisions of the local rules into the SIP pursuant to section 110(k)(2) of the Act. DATES: Any comments must arrive by March 21, 2008. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2007-0122, by one of the following methods: • *Federal eRulemaking Portal: www.regulations.gov.* Follow the on-line instructions. • *E-mail: R9airpermits@epa.gov.* • *Mail or deliver:* Gerardo Rios (Air-3), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105. *Instructions:* All comments will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *www.regulations.gov* or e-mail. *www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. *Docket:* The index to the docket for this action is available electronically at *www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section below. FOR FURTHER INFORMATION CONTACT: Laura Yannayon, Permits Office (AIR-3), U.S. Environmental Protection Agency, Region IX,
(415)972-3534, *yannayon.laura@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. Correction of EPA's May 2004 Final Approval A. CAA Legal Authority B. Background on California's and SJVUAPCD's SIPs C. Correction of Erroneous Final Approval II. The State's Submittal of Its 2006 Revisions A. What revisions did the State submit? B. Are there other versions of these rules? C. What is the purpose of the submitted rule revisions? III. EPA's Evaluation and Action on the 2006 Revisions A. How is EPA evaluating the rules? B. Do the rules meet the evaluation criteria? 1. Compliance With EPA Minor Source Permitting Requirements 2. CAA Section 110(l) C. Public Comment and Final Action IV. Statutory and Executive Order Reviews I. Correction of EPA's May 2004 Final Approval A. CAA Legal Authority Section 110(k)(6) of the Clean Air Act, as amended in 1990, provides: “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and the public.” We interpret this provision to authorize the Agency to make corrections to a promulgated regulation when it is shown to our satisfaction (or we discover) that
(1)we clearly erred by failing to consider or by inappropriately considering information made available to EPA at the time of the promulgation, or the information made available at the time of promulgation is subsequently demonstrated to have been clearly inadequate, and
(2)other information persuasively supports a change in the regulation. See 71 FR 75690, at 75693 (December 18, 2006); 57 FR 56762, at 56763 (November 30, 1992). B. Background on California's and SJVUAPCD's SIPs The regulatory history of permitting agricultural sources in California is relevant to our evaluation of the error we made in our May 2004 final approval of the District's new source review
(NSR)permitting rules. In 1970, the California legislature enacted a law that was codified as California Health & Safety Code (CH&SC) section 24265(e). CH&SC section 24265(e) exempted all agricultural sources from District permitting requirements. Specifically, CH&SC section 24265(e) provided that a District permit shall not be required for equipment used in agricultural operations in the growing of crops or raising of fowls or animals except for certain orchard or citrus grove heaters in Southern California. 1 1 In this instance, Southern California is defined as including all counties, any part of which lie south of the Sixth Standard Parallel South, Mount Diablo Base and Meridian. Within the SJVUAPCD, only Kern County lies south of the Sixth Standard Parallel South. On February 21, 1972, pursuant to the Clean Air Amendments of 1970, Governor Ronald Reagan submitted the original California State Implementation Plan
(SIP)to EPA. The original SIP included “Chapter 7—Legal Considerations” to demonstrate adequate legal authority to implement and enforce SIP requirements. Chapter 7 of the original SIP discusses the respective authorities of the California Air Resources Board and the local air districts. Specifically, the narrative included as Chapter 7 cites CH&SC section 24263 as a basis for the authority of local air districts to operate permit systems but does not specifically cite the permitting exemptions found in CH&SC section 24265. California submitted many provisions of the CH&SC including specific provisions cited in the narrative, such as section 24263, as well as provisions that were not specifically cited, such as section 24265, as appendix II to the original SIP. Later that same year, and with certain exceptions not relevant here, EPA took action to approve the original SIP. See 37 FR 10842 (May 31, 1972). The California SIP has been revised many times, and on March 16, 1979, the Governor's designee, the California Air Resources Board (CARB), submitted a revision to the SIP referred to as “Chapter 3—Legal Authority, Revision to State of California Implementation Plan for the Attainment and Maintenance of Ambient Air Quality Standards (December 1978).” By 1979, CH&SC section 24265(e) had been re-codified as CH&SC section 42310(e). Similar to the 1972 original SIP, CARB's 1979 submittal includes a narrative that generally describes, among many other topics, the authority of local air districts to issue permits to stationary sources but that does not specifically cite exemptions to District permitting (then codified under CH&SC section 42310). The 1979 submittal incorporates CH&SC provisions as appendix 3-A to chapter 3, but, unlike the 1972 SIP, California did not physically include the actual CH&SC provisions with the 1979 submittal, but indicated that the code was available separately from the ARB Public Information Office. We described CARB's 1979 submittal of “Chapter 3—Legal Authority” as an updating and clarification of the 1972 SIP. See 44 FR 38912 (July 3, 1979). The following year, we finalized our proposed approval of the March 16, 1979 submittal of “Legal Authority.” See 45 FR 53136 (August 11, 1980). In addition, individual California air pollution control districts subsequently submitted (through CARB) local permitting rules for EPA to approve into the SIP. Some district permitting rules, such as those submitted by SJVUAPCD, explicitly exempted agricultural sources from the NSR permitting rules, consistent with and generally citing to CH&SC section 42310(e). Prior to the late 1990's, EPA had approved such exemptions into SIP NSR permitting rules, including the SIP NSR rules for the county APCDs that now comprise the region-wide SJVUAPCD. CARB submitted a revised version of SJVUAPCD NSR permitting rules, Rules 2020 and 2201, to EPA for SIP approval in 1998. On July 19, 2001, EPA finalized a limited approval and limited disapproval of revised SJVUAPCD Rules 2020 and 2201. See 66 FR 37587 (July 19, 2001). EPA's limited disapproval was based, in part, on Rule 2020's exemption of agricultural sources, which was identical to and referenced CH&SC section 42310(e). Our limited disapproval stated that SJVUAPCD could not exempt major stationary sources or major modifications at existing major sources from NSR requirements. 2 2 SJVUAPCD NSR permitting rules do not adopt the distinction between minor sources and major sources as set forth under the CAA. SJVUAPCD Rules 2201 and 2020 generally apply to both federal minor and major stationary sources. Our limited approval specified that the rule deficiency was exempting major agricultural sources and major modifications. See 65 FR 58252, at 58254 (September 28, 2000). To correct the deficiency in Rule 2020 leading to EPA's July 2001 limited disapproval, SJVUAPCD adopted and submitted a revision to Rule 2020 which eliminated the agricultural exemption in its entirety from the District rules. SJVUAPCD submitted the revised Rule 2020 to EPA on December 23, 2002. On February 13, 2003, EPA proposed several actions regarding the exemption of agricultural sources from major source NSR permitting requirements. First, EPA proposed approval of revised Rule 2020 completely deleting the permit exemption for agricultural sources from the District rules. See 68 FR 7330 (February 13, 2003). 3 In that notice, EPA specifically noted that “California Health & Safety Code 42310(e) continues to preclude the District, as well as all other districts in California, from permitting agricultural sources under either title I or title V of the CAA.” See 68 FR 7330, at 7335. To address this issue, EPA published a proposal finding that California's statutory exemption of agricultural sources in CH&SC section 42310(e) from major source NSR permitting rules violated the requirements of CAA section 110(a)(2)(E). See 68 FR 7327 (February 13, 2003). This action, titled “Finding of Substantial Inadequacy of Implementation Plan; Call for California State Implementation Plan Revision” (hereinafter “SIP Call”), determined that California lacked adequate legal authority to carry out its NSR permitting requirements because CH&SC section 42310(e) exempted major agricultural sources. EPA finalized the SIP Call on June 25, 2003, and thereby required California to submit the necessary assurances of authority by November 23, 2003 to support an affirmative finding by EPA under CAA section 110(a)(2)(E). If the State failed to submit the necessary assurances, then EPA indicated that the sanctions clock under CAA section 179 would be triggered. 4 See 68 FR 37746 (June 25, 2003). 3 EPA also published an Interim Final Determination that SJVUAPCD had corrected the July 2001 limited approval deficiencies and EPA stayed or deferred the imposition of CAA sanctions on the District. See 68 FR 7321. 4 On May 22, 2002, EPA issued a Notice of Deficiency for California's Title V program based on the exemption of agricultural sources from Title V permitting. See 67 FR 35990 (May 22, 2002). EPA's decision was upheld. See *California Farm Bureau Fed'n* v. *EPA,* No. 02-73371 (9th Cir. July 15, 2003) (memorandum opinion). Later that summer, the California legislature enacted Senate Bill
(SB)700, which the Governor of California signed on September 22, 2003. SB 700 removed the wholesale exemption from permitting for agricultural sources provided under CH&SC section 42310(e) and subjected major agricultural sources to permitting requirements. SB 700, however, retained exemptions for new source permitting for certain minor agricultural sources, and limited the ability to require minor agricultural sources to obtain federal offsets. 5 California notified EPA of the legislature's action by letter dated November 3, 2003 thereby avoiding the triggering of a sanctions clock. California enclosed a copy of SB 700 with the November 3, 2003 letter. 6 5 As explained in Section II.C below, sources with emissions below 50 percent of the major source threshold are exempt from permitting unless the District makes certain findings, while sources at or above 50 percent of the major source threshold are subject to permitting unless the District makes certain findings. See CH&SC section 42301.16
(b)and (c). In addition, offsets may not be required unless they meet the criteria for real, permanent, quantifiable, and enforceable emission reductions. See CH&SC section 42301.18(c). It is worth noting that EPA and California interpret CH&SC section 42301.16(a) to require all sources that emit or have the potential to emit at or above the major source threshold to be subject to new source permitting and offset requirements, as required by the Clean Air Act, without regard to the provisions of sections 42301.16(c) or 42301.18(c). Thus, an agricultural source with actual emissions less than 50 percent of the major source threshold but potential emissions above the major source threshold is subject to new source permitting and offset requirements. 6 See Letter from Bill Lockyer, Attorney General, California Office of the Attorney General, to Marianne Horinko, Acting Administrator, EPA, dated November 3, 2003. On May 17, 2004, EPA took final action approving SJVUAPCD's permitting rules, Rule 2020 and 2201, as proposed in February 2003. See 69 FR 27837 (May 17, 2004). These rules, as approved by EPA, did not on their face exempt any agricultural sources from permitting or limit the applicability of offset requirements. EPA's final approval stated that the District had removed its exemption for agricultural sources and that the state had also “removed a similar blanket exemption, thereby providing the District with authority to require air permits for agricultural sources, including federally required NSR permits.” See 69 FR 27837, at 27838. EPA's final approval cited SB 700 in a footnote, but did not note the limited scope of authority for permitting and offset requirements under SB 700, which allowed permitting of only certain minor agricultural sources. Whether or not EPA's SIP actions in 1972 or 1979 approved the statutory provision exempting agricultural sources from permitting (i.e., CH&SC section 24265(e), recodified as CH&SC section 42310(e)) as part of the California SIP, it is clear that as of the promulgation of our May 2004 final rule there is no exemption from permitting for agricultural sources derived from the statutory provision within the SJVUAPCD portion of the SIP. C. Correction of Erroneous Final Approval In this instance, we believe that our May 2004 final full approval of Rules 2020 and 2201 was erroneous. For all SIP revisions, States must provide evidence that the State has the necessary legal authority under State law to adopt and implement the plan. See CAA section 110(a)(2)(E); 40 CFR part 51, appendix V, section 2.1(c). Thus, to support the approval CARB was required in December 2002 to provide evidence that SJVUAPCD had the necessary legal authority under State law to implement Rules 2020 and 2201, which purported to require permits and offsets for all agricultural sources. CARB could not have done so because CH&SC section 42310(e), applicable at that time, continued to preclude such authority under State law with respect to all agricultural sources. Nonetheless, we proposed to fully approve Rules 2020 and 2201 on February 13, 2003, with the expectation that the California legislature would act to remove CH&SC section 42310(e)'s exemption for agricultural sources thereby aligning Rule 2020 with District authority under State law. 68 FR 7330 (Feb. 13, 2003). While the legislature did act shortly thereafter to remove the exemption for major agricultural sources and major modifications at existing major agricultural sources, the legislature also retained the exemption from permitting for certain minor agricultural sources, leaving the words of Rule 2020 broader than the District's authority under State law. The legislature also exempted minor agricultural sources from obtaining offsets pending a determination that emissions reductions from such sources meet certain criteria, leaving Rule 2201, on its face, also at odds with State law. We now understand that our final approval action on Rules 2020 and 2201 should have ensured that the authority in those rules was consistent with the authority granted by SB 700. In other words, we should have limited our approval of Rule 2020 to exclude applicability to agricultural sources exempt from new source permitting under SB 700 (i.e., minor sources with emissions less than 50 percent of the major source threshold absent findings, or minor sources over 50 percent of that threshold with findings). Our approval of Rule 2201 should have been limited to provisions requiring offsets for major agricultural sources and for minor sources when the listed criteria were satisfied. Given that California submitted a copy of SB 700 in November 2003, we had information indicating that the District did not have the authority to implement Rules 2020 and 2201 to the extent that the language of the rule appeared to allow (i.e., to require permits and offsets from all new or modified agricultural sources, including those exempt under SB 700) prior to the time we took final action. We should have limited our approval of Rules 2020 and 2201 to conform with SB 700, and promulgated language in 40 CFR part 52 codifying that limitation on our approval. We note that recent enforcement actions have been brought pursuant to the CAA's citizen suit provisions against minor agricultural sources in SJVUAPCD that have emissions less than 50 percent of the major source threshold for failure to apply for and receive a new or modified source permit. SJVUAPCD, however, does not have the authority under State law to issue such permits. The fact that such cases are being brought (and one case has been brought successfully (see *Assoc. of Irritated Residents* v. *C & R. Vanderham Dairies,* 2007 U.S. Dist. 70890 (E.D. Cal., Sept. 24, 2007)) persuasively supports the need to correct our error in approving Rules 2020 and 2201 in 2004. Therefore, pursuant to CAA section 110(k)(6), we are proposing to correct our error by limiting our approval of Rules 2020 and 2201 to apply only to the extent the District has authority under state law to require permits and offsets. Specifically, with respect to agricultural sources, we are approving Rule 2020 only to the extent it applies to agricultural sources subject to permitting under SB 700. Also and again with respect to agricultural sources, we are approving Rule 2201 only to the extent it requires offsets for new major sources and major modifications until certain criteria set forth in State law are met. To codify this proposed error correction, we are proposing the following language to be added as a new section, 52.245, of 40 CFR part 52, subpart F (“California”): 52.245 New Source Review Rules
(a)Approval of the New Source Review rules for the San Joaquin Valley Unified Air Pollution Control District Rules 2020 and 2201 as approved May 17, 2004, is limited, as it relates to agricultural sources, to apply the permit requirement only
(1)to agricultural sources with actual or potential emissions at or above a major source applicability threshold and
(2)to agricultural sources with actual emissions at or above 50 percent of a major source applicability threshold. The District has the authority to permit or exempt from permitting minor agricultural sources upon making the findings prescribed in CH&SC 42301.16
(b)and (c). The offset requirement, as it relates to agricultural sources, does not apply to new minor agricultural sources and minor modifications to such sources if emissions reductions from that source would not meet the criteria for real, permanent, quantifiable, and enforceable emission reductions. This document simultaneously proposes to approve revised language into Rules 2020 and 2201 that conforms the rules to the authority provided in SB 700. If we take final action to approve the revised rules at the same time as we take final action on our proposed correction, then the draft regulatory language set forth above will not be codified because it will be superceded by the revised language submitted by the District. II. The State's Submittal of Its 2006 Revisions A. What revisions did the State submit? Table 1 lists the rules we are proposing to approve with the dates that they were revised by SJVUAPCD and submitted to EPA by the California Air Resources Board (CARB). Table 1.—Submitted Rules Proposed for Full Approval Local agency Rule No. Rule title Amended Submitted SJVUAPCD 2020 paragraph 6.20 only Exemptions 09/21/06 12/29/06 SJVUAPCD 2201, paragraph 4.6.9 only New and Modified Stationary Source Review Rule 09/21/06 12/29/06 On June 29, 2007, the submittal of Rule 2020, paragraph 6.20, and Rule 2201, paragraph 4.6.9, was deemed by operation of law to have met the completeness criteria in 40 CFR part 51 appendix V, which must be met before formal EPA review. B. Are there other versions of these rules? As discussed above, we approved a version of Rule 2020 into the SIP on May 17, 2004 (69 FR 27837). In today's action, we have determined that the approval was erroneous to the extent it required sources exempted from permitting under SB 700 (i.e. sources less than 50 percent of the major source threshold) to obtain permits. We also approved a version of Rule 2201 into the SIP on May 17, 2004 (69 FR 27837), although we have determined the approval was erroneous to the extent it required offsets barred by SB 700. The versions of Rules 2020 and 2201 that we approved in 2004 did not include provisions equivalent to those now included in paragraph 6.20 of Rule 2020 or paragraph 4.6.9 of Rule 2201. Prior to our 2004 approval of Rules 2020 and 2201, the SJVUAPCD portion of the California SIP included a broad exemption from permitting for all agricultural sources, citing CH&SC section 42310(e). See section 4.0 of SJVUAPCD rule 2020, as amended on September 17, 1998, submitted on October 27, 1998, and approved on July 19, 2001 at 66 FR 37587. C. What is the purpose of the submitted rule revisions? Section 110(a) of the CAA requires states to submit regulations that control volatile organic compounds, nitrogen oxides, particulate matter, and other air pollutants which harm human health and the environment. Permitting rules were developed as part of the local air district's programs to control these pollutants. The purpose of the addition of paragraph 6.20 to SIP Rule 2020 is as follows: • This paragraph conforms District permit requirements to State law by explicitly exempting agricultural sources to the extent such sources are exempt pursuant to CH&SC section 42301.16. Section 42301.16(a) requires local air permitting authorities to require permits for agricultural sources subject to the requirements of title I or title V of the federal Clean Air Act. Section 42301.16(b) similarly requires permits for all agricultural sources unless specified findings are made at a public hearing or except as provided in section 42301.16(c). Section 42301.16(c) requires the District to make specified findings at a public hearing prior to requiring permits for agricultural sources with emissions that are less than one-half of any major source threshold. The net effect of this section is that all agricultural sources with actual emissions or a potential to emit at or above a major source applicability threshold are required to obtain a District permit pursuant to CH&SC section 42301.16(a). Agricultural sources with actual emissions at or above 50 percent of a major source applicability threshold are required to obtain a District permit, unless the District makes the findings specified by subsection (b). No permits are required for agricultural sources with actual emissions of less than 50 percent of the major source applicability thresholds, unless the District makes the findings specified in subsection (c), subject to the limitation in CH&SC section 42301(a). The purpose of the addition of paragraph 4.6.9 to SIP Rule 2201 is as follows: • This paragraph exempts new or modified agricultural sources from offset requirements to the extent provided by CH&SC section 42301.18(c), unless the offsets are required by federal CAA requirements (see CH&SC section 42301(a)). Section 42301.18(c) prohibits districts from requiring agricultural sources to obtain offsets if emissions reductions from such sources would not meet the criteria for real, permanent, quantifiable, and enforceable emissions reductions. III. EPA's Evaluation and Action on the 2006 Revisions A. How is EPA evaluating the rules? Generally, SIP rules must be enforceable and must not interfere with an area's progress towards attainment or any other requirement of the Act. See CAA sections 110(a), 110(l); see also CAA section 193 (antibacksliding requirements for pre-1990 control measures). Specific EPA requirements for SIPs with respect to review of new or modified minor stationary sources are set forth in 40 CFR 51.160 through 51.164. CAA section 110(l) directs EPA to disapprove any SIP revision that would interfere with any applicable requirement concerning attainment or reasonable further progress or any other applicable requirement of the Act. Assuming that CAA section 193 applies to NSR, section 193 does not apply to this action because as of November 15, 1990, all agricultural sources were entirely exempt from permitting and offset requirements. Thus, the proposed revisions, specifying limits on the permit and offset requirements for minor agricultural sources, do not modify a control requirement in effect before passage of the Clean Air Act Amendments of 1990. B. Do the rules meet the evaluation criteria? 1. Compliance With EPA Enforceability and Minor Source Permitting Requirements The limited exemptions from permitting and offsets provided in paragraphs 6.20 (Rule 2020) and 4.6.9 (Rule 2201) for minor agricultural sources are consistent with EPA requirements for enforceability. The limited exemptions are also consistent with the requirements promulgated in 40 CFR 51.160—51.164 for stationary sources that do not exceed the major source or major modification thresholds. EPA is proposing to approve paragraphs 6.20 and 4.6.9 into Rules 2020 and 2201, respectively, because SJVUAPCD has discretion in conducting its minor source permitting program to exempt certain small sources and, under federal law, minor sources are not required to obtain offsets. Congress directed the States to exercise the primary responsibility under the CAA to tailor air quality control measures, including minor source permitting programs, to the State's needs. See *Train* v. *NRDC* , 421 U.S. 60, 79
(1975)(States make the primary decisions over how to achieve CAA requirements); *Union Electric Co.* v. *EPA* , 427 U.S. 246 (1976); *Greenbaum* v. *EPA* , 370 F.3d 527 (6th Cir. 2006). Specifically, paragraph 6.20 of Rule 2020 complies with the requirements for minor sources established in 40 CFR 51.160(b)(2). That regulation requires the permitting authority to retain the legal ability to prevent construction or modification of a minor source if “[i]t will interfere with the attainment or maintenance of a national standard.” Paragraph 6.20, by incorporating CH&SC section 42301.16(c), continues to allow the District to require permits for agricultural sources with emissions that are less than one-half of any major source threshold upon making specified findings at a public hearing. One such finding is that emissions from the construction or modification of the source will adversely impact air quality. Thus, since the exemptions in paragraphs 6.20 and 4.6.9 do not apply to any major stationary sources or major modifications at existing major stationary sources, and the exemptions comply with federal regulations, we believe these revisions are fully approvable under section 110(k)(2) of the CAA. 2. CAA Section 110(l) The only remaining issue is whether this SIP revision would interfere with requirements concerning attainment and reasonable further progress (or any other applicable CAA requirement) as set forth in CAA section 110(l). CAA section 110(l) provides: “Each revision to an implementation plan submitted by a State under this chapter shall be adopted by such State after reasonable notice and public hearing. The administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 7501 of this title) or any other applicable requirement of this chapter.” The San Joaquin Valley is currently designated nonattainment for PM 2.5 , PM 10 , and the eight-hour ozone standard. The area is formally designated attainment for the remaining criteria pollutants. The District's attainment plan for PM 2.5 is due April 8, 2008, it has submitted a plan for attaining the ozone standard, and EPA has published a Finding of Attainment for PM 10 , 71 FR 63462 (Oct. 30, 2006). Prior to the time that attainment demonstrations are due for a standard, it is unknown what suite of control measures are needed for a given area to attain the standard. During this period, to demonstrate no interference with any applicable NAAQS or requirement of the Clean Air Act under section 110(l), EPA's view is that it is appropriate to allow states to substitute equivalent emission reductions to compensate for the control measure being removed from the active SIP. This approach has been adopted after notice and comment rulemaking in other SIP revisions. See, e.g., 70 FR 57750 (October 4, 2005); 70 FR 53 (January 3, 2005). EPA also believes there are other means to demonstrate that a SIP revision would not interfere with attainment or maintenance of the NAAQS, such as modeling to show noninterference with attainment, or a full attainment demonstration. 7 In this case, after considering the District's attainment status and attainment plans for nonattainment pollutants, we believe that the adoption of the proposed revisions in place of the SIP as proposed to be corrected would not result in any change in emissions, any change in air quality, or any change in the area's ability to attain or maintain the NAAQS. 7 We note that no approved or submitted San Joaquin Valley attainment plan for any nonattainment pollutant has relied upon NSR for agricultural sources less than 50 percent of the major source threshold. Further, for attainment planning purposes, growth in emissions from agricultural sources has been established by CARB's area source inventory growth methodologies, and no mitigation of that growth, such as through an offset requirement, has been considered when determining the impact of the growth on the District's ability to achieve attainment with the standards. See the District's Clean Air Act 110(l) Analysis entitled “San Joaquin Valley Unified Air Pollution Control District Rules 2020 and 2201, as amended September 21, 2006, District's Clean Air Act 110(l) Analysis” dated November 20, 2007. Accordingly, we conclude that this SIP revision, if approved, will not interfere with any applicable requirements for attainment and reasonable further progress or any other applicable requirement of the CAA and is approvable under section 110(l). C. Public Comment and Final Action Under section 110(k)(6) of the Clean Air Act, we are proposing to correct our May 2004 final approval of revisions to District NSR permitting Rules 2020 and 2201 because, by virtue of information submitted by California to us in November 2003, we should have limited our approval consistent with the legal authority provided in State law to air districts to permit, and require offsets for, new or modified agricultural sources. To correct our error, we are proposing regulatory language to so limit our May 2004 approval. Under section 110(k)(2) of the Clean Air Act, we are proposing to approve the District's 2006 revisions to Rules 2020 and 2201 to conform the rules to State law by explicitly exempting certain small or minor agricultural sources from permitting requirements and by exempting all minor agricultural sources from offset requirements until certain criteria are met. We will accept comments from the public on this proposal for the next 30 days. If, after consideration of public comments, we decide to publish a final error correction and final approval of the revised rules in the same document, then we intend that the language of the revised rules will supercede the error correction and we do not intend to codify the proposed regulatory language limiting our May 2004 approval of the previous versions of District Rules 2020 and 2201. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to correct an error and to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to correct an error and approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to correct an error and approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements. Dated: January 31, 2008. Wayne Nastri, Regional Administrator, Region IX. [FR Doc. E8-3113 Filed 2-19-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 375 [Docket No. FMCSA-2008-0019] RIN 2126-AB01 Transportation of Household Goods; Consumer Complaint Information Quarterly Report AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of proposed rulemaking (NPRM); request for comments. SUMMARY: FMCSA proposes to amend the Federal Motor Carrier Safety Regulations to implement reporting requirements for household goods motor carriers operating in interstate commerce under section 4214 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). SAFETEA-LU directs FMCSA to issue regulations requiring that each household goods motor carrier operating in interstate commerce submit a quarterly report summarizing specific information. These reports must include the number of shipments originating with, and delivered by, the carrier; the number and general category of complaints lodged by consumers with the carrier; the number of claims for loss and damage in excess of $500 filed with the carrier; and the number of such claims resolved, declined, and pending during the reporting period. DATES: Submit comments concerning this NPRM on or before April 21, 2008. ADDRESSES: You may submit comments identified by the Federal Docket Management System Number in the heading of this document by any of the following methods. Do not submit the same comments by more than one method. However, to allow effective public participation in this rulemaking before the comment period deadline, the Agency encourages use of the Web site that is listed first. It will provide the most efficient and timely method of receiving and processing your comments. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. • *Hand Delivery:* Ground floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. *Instructions:* All submissions must include the Agency name and docket number or Regulatory Identification Number for this regulatory action. Note that all comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. Refer to the Privacy Act heading on *http://www.regulations.gov* for further information. If addressing a specific request for comments in this NPRM, please provide detailed information (including examples) and clearly identify the related section heading or question number for each topic addressed in your comments. *Public Participation:* The regulations.gov system is generally available 24 hours each day, 365 days each year. You can find electronic submission and retrieval help and guidelines under the “help” section of the Web site. For notification that FMCSA received the comments, please include a self-addressed, stamped envelope or postcard, or print the acknowledgement page that appears after submitting comments on line. Copies or abstracts of all documents referenced in this notice are in the docket for this rulemaking: FMCSA-2008-0019. For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* at any time or to Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, FMCSA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after the close of the comment period. FOR FURTHER INFORMATION CONTACT: Ms. Dorothea Grymes,
(202)385-2400. Office hours are from 8:30 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Legal Basis for the Rulemaking Under the Household Goods Mover Oversight Enforcement and Reform Act of 2005 (Title IV Subtitle B of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)), the Secretary of Transportation (Secretary) must issue regulations requiring each motor carrier of household goods operating in interstate commerce to submit a quarterly report. [See section 4214(a)(2) of Pub. L. 109-59.] The quarterly report must summarize:
(1)The number of shipments that originate and are delivered for individual shippers during the reporting period by the carrier;
(2)the number and general category of complaints lodged by consumers with the carrier;
(3)the number of claims for loss and damage exceeding $500 filed with the carrier; and
(4)the number of such claims resolved, declined, and pending during the reporting period. The regulatory changes in this proposed rule would implement that reporting requirement. Under 49 CFR 1.73(a), the Secretary has delegated the various authorities described in this section to the FMCSA Administrator. Background The Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, December 9, 1999, 113 Stat. 1749) established FMCSA as a separate agency within the U.S. Department of Transportation (DOT). Through that statute, Congress also authorized the Agency to regulate motor carriers transporting household goods in interstate commerce for individual shippers. We codified and published regulations setting forth Federal consumer protection requirements for interstate household goods motor carriers in 49 CFR part 375. In testimony before the U.S. House Subcommittee on Highways and Transportation (Hearing: Oversight of the Household Goods Moving Industry. July 12, 2001. No. 107-32), 1 the Government Accountability Office urged DOT to collect and analyze nationwide complaint information that would help the Department understand and oversee the household goods moving industry. Consumer groups also expressed the need for DOT to aggregate complaints nationwide to help direct enforcement activities. 1 An electronic copy of the Hearing: Oversight of the Household Goods Moving Industry. July 12, 2001. No. 107-32 may be found at: *http://commdocs.house.gov/committees/Trans/hpw107-32.000/hpw107-32_0f.htm* . On June 11, 2003, FMCSA published an interim final rule (68 FR 35064) that required household goods motor carriers to have an arbitration program for individual shippers and to provide prospective shippers with a description of the household goods motor carrier's customer complaint and inquiry handling procedure. Subsequently, Congress enacted section 4214(a)(2) of SAFETEA-LU, which directed the Secretary to issue regulations requiring each motor carrier of household goods to submit a quarterly report summarizing the following: • The number of shipments that originate and are delivered for individual shippers during the reporting period by the carrier; • The number and general category of complaints lodged by consumers with the carrier; • The number of claims for loss and damage exceeding $500 filed with the carrier; and • The number of such claims resolved, declined, and pending during the reporting period. Although FMCSA maintains both online access for filing consumer complaints and a consumer complaint hotline, the Agency does not require household goods motor carriers to report carrier shipments, complaints received, and claims resolution. This proposed rule would implement the statutory mandate that each household goods motor carrier submit quarterly reports addressing these subjects. Because an individual shipper has the option of filing a claim or complaint against any carrier involved in handling his or her household goods, the Agency interprets the statute as requiring household goods motor carriers to report all interstate shipments handled by the carrier, including those in which other carriers may have provided all or part of the line-haul transportation. Section 4214 Consumer Complaint Information Section 4214(a)(1) requires FMCSA to establish a system, database, and procedures for filing and logging consumer complaints relating to household goods motor carriers for the purpose of compiling or linking complaint information gathered by FMCSA and the States with regard to such carriers. Section 4214(a)(1) also requires FMCSA to establish procedures to allow the public to have access, subject to 5 U.S.C. 552(a), 2 to aggregated complaint information and a process for carriers to challenge duplicate or fraudulent information in the database. FMCSA was also directed, under section 4214(a)(3), to develop a procedure to forward complaints to the motor carrier named in the complaint and to the appropriate State authority in the State in which the complainant resides. Section 4214(b) requires FMCSA to consider the information gathered in the database as a part of the Agency's household goods compliance and enforcement program. FMCSA has implemented the requirements of subsections 4214(a)(1), (a)(3), and
(b)of SAFETEA-LU by establishing a system, database, and procedures for filing and logging consumer complaints relating to household goods motor carriers. 3 The only requirement left to implement is section 4214(a)(2). This section requires FMCSA to promulgate regulations requiring household goods motor carriers to file quarterly reports about the consumer complaints they receive and their disposition of loss and damage claims in excess of $500. FMCSA plans to link the quarterly complaint information reports with the system of complaints previously established and currently in operation. 2 The Privacy Act of 1974, Public Law 93-579, 88 Stat, 1897 (December 31, 1974), as amended. 3 Individual shippers may either fill out the Household Goods Consumer Complaint form found at *http://nccdb.fmcsa.dot.gov/HomePage.asp* or telephone the FMCSA Household Goods Consumer Complaint Hotline at 1-888-DOT-SAFT (1-888-368-7238) Monday-Friday between the hours of 9 a.m. and 9 p.m. e.t. Section 4214(a)(2) Household Goods Carrier Quarterly Reports: *Proposed Reporting Requirements* Under section 4214(a)(2)(B), the quarterly report must group complaints into general categories. In today's NPRM, FMCSA proposes that household goods carriers be required to submit quarterly reports on a standard form that prescribes general complaint categories. We propose to use four general complaint categories and a fifth category for all other complaints that do not fit within one of the four specific categories. FMCSA also proposes that household goods motor carrier quarterly reports be submitted to the Agency either through a web-based system or in hard copy form. In prescribing four specific complaint categories, we seek to ensure consistency regarding the types and number of complaints—important factors when we use the data to identify trends, problems and potential future program changes. This approach helps ensure we collect data that FMCSA, regulated entities, and the public can compare and measure meaningfully. If we allow household goods motor carriers to decide what categories of complaints to report, we may get data that users cannot measure or compare objectively. Prescribing general categories of complaints will allow users to compare and assess data quality by cross-referencing complaint categories in the consumer database with the quarterly reports from motor carriers. Our proposed requirement that carriers record quarterly data on a standard form would help ensure the collection of data in a way that is easy to process and disseminate. A standard form avoids the burden of comparing disparate elements and sorting them into meaningful data. The Agency proposes to use the following five complaint categories: Loss and damage; service 4 ; rates or charges; how claims are handled; and other complaints that do not fall within these four categories. The four specific complaint categories are the four most often reported to, or filed with, FMCSA on its household goods complaint hotline or on its household goods complaint Web page. 5 4 Service complaints by individual shippers usually involve
(1)a delay in providing service; or
(2)refusal or failure to provide services as agreed. Two examples are refusing to weigh shipments upon requests by an individual shipper and failing to pick up or deliver household goods at agreed upon times or in an agreed upon manner. 5 See footnote 3 above. We also propose making this required form web-based so that household goods motor carriers can submit it electronically. We believe that most household goods motor carriers have Internet access. With online filing, we expect fewer data entry mistakes because the household goods motor carrier directly inputs the information. Online filing will also reduce processing time and be more cost efficient. However, we recognize that all carriers may not have convenient Internet access. If a carrier lacks Internet access, it may file a paper version of FMCSA's report form. The Agency plans to incorporate the quarterly report system into its COMPASS program. The COMPASS program is an FMCSA-wide initiative that is consolidating all of FMCSA's separate databases and information technology systems into one coordinated system that should improve the Agency's ability to accomplish its mission and serve the public. More information on COMPASS is available at *http://www.fmcsa.dot.gov* FMCSA plans to require motor carriers using the quarterly reporting system to access the COMPASS system with a secure sign-on procedure. FMCSA plans to display summaries of all reported data on the Agency's Web site, as it does with other information in FMCSA's systems. As we stated previously, FMCSA also plans to link the quarterly reports with the other complaints the Agency receives directly from individual shippers to monitor the household goods industry as required by subsections 4214(a)(1) and (a)(3) of SAFETEA-LU. This information will assist FMCSA with its household goods compliance and enforcement program. Proposed Penalties for Failing To File a Quarterly Report or for Filing an Incomplete or Inaccurate Quarterly Report Household goods motor carriers or their officers, agents, or employees who fail to:
(1)File a report with FMCSA;
(2)specifically, completely and truthfully answer a question on the report; or
(3)make, prepare, or preserve the report in the form and manner prescribed are subject to a minimum civil penalty of $650 for each violation and for each additional day the violation continues under 49 U.S.C. 14901(a). Under 49 U.S.C. 14907, a maximum civil penalty of $6,500 can be assessed for:
(1)Failing to file a required report;
(2)failing to answer a question on the report within 30 days from the date FMCSA requires the question to be answered;
(3)failing to make, prepare, or preserve the report in the form and manner prescribed;
(4)falsifying, destroying, or changing the report;
(5)filing a false report;
(6)making a false or incomplete entry in the report about a business related fact; or
(7)preparing or preserving the report in violation of FMCSA regulations. 6 6 For more information, see paragraphs (g)(1) and (g)(16) in Appendix B to 49 CFR part 386— *Penalty Schedule; Violations and Maximum Civil Penalties.* Other Approaches We Considered In 49 CFR 375.209(b)(4), FMCSA already requires household goods motor carriers to maintain a record of all inquiries and complaints received from an individual shipper by any means of communication. Therefore, household goods motor carriers must already collect complaint data, presumably on an existing company form or through an electronic company system organized into general categories useful to the household goods motor carrier. We considered allowing carriers to use their existing forms to satisfy section 4214(a)(2) reporting requirements. This approach would permit carriers to report information captured in their company databases using their own general categories without prescribing uniform categories of complaints or requiring a standard form. If a company summarizes its complaint data on its own form using its own categories, then requiring the company to change to a standard form and standard categories would impose a burden to weigh against any possible benefit—especially if the company system already brings in the numerical data required for the quarterly report under SAFETEA-LU section 4214(a)(2). Although this approach may be less burdensome and less costly for household goods carriers, it likely would result in a lack of uniformity in the data received from the industry, severely limiting the usefulness of the quarterly report. We also considered an approach that would be identical to our proposal, except that web-based reporting would be required in all circumstances. Required web-based data collection would facilitate Agency data sorting and processing. On the other hand, for a carrier without Internet access, requiring web-based reporting would result in additional cost associated with procuring access through other locations. Nevertheless, the incremental cost to household goods carriers of a fully web-based reporting system would be relatively small, and the Agency is considering a final rule that would not allow the filing of reports by mail. FMCSA solicits comments on the costs and feasibility of an all-electronic method of reporting the information required by section 4214. We also considered whether to propose a similar quarterly reporting requirement for household goods brokers, although SAFETEA-LU does not mandate such a requirement. We concluded it was premature to propose such a requirement at this time because we have recently proposed new regulatory requirements for household goods brokers. Our experience with the quarterly reporting requirement for household goods carriers mandated by SAFETEA-LU and proposed in this rulemaking will help the Agency evaluate whether such a requirement would be useful in connection with household goods brokers, in light of the new requirements. Rulemaking Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures FMCSA has made a determination that this action is a significant regulatory action within the meaning of Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979) because of public interest in household goods transportation issues. The purpose of this analysis is to present the likely costs and benefits to the motor carrier industry of complying with these proposed regulations. A preliminary estimate of the costs of the proposed complaint reporting system was made based on certain assumptions. This analysis assumes that only active household goods motor carriers involved in interstate commerce will be required to assemble quarterly reports on complaints received, shipments moved, and loss or damage claims filed. We estimate that the quarterly reports will take 2 hours per quarter for household goods motor carriers to assemble. The regulations will require household goods motor carriers to report the “number and general category” of complaints received, but household goods motor carriers will not have to provide full details of the complaints, as a result of this regulation. Under the Agency's proposal, we anticipate that most reports will be compiled and filed via an online report filing system. Regardless of which method of transmission is chosen, the costs for compiling the reports are expected to be the same. We assume that the reports will be compiled and filed by clerical staff working for the motor carrier. The hourly wage for a general office worker is $11.82 per hour, according to the Bureau of Labor Statistics. Inflating this number by 30 percent to account for fringe benefits, the total cost of time for a general office clerk would be $15.37 per hour. There are about 5,400 active household goods motor carriers operating in interstate commerce in the United States as of April 2006. Assuming 2 hours per report filed, the reports would cost each active household goods carrier just under $31 to file. Since reports are to be filed quarterly, this amounts to an annual per-carrier cost of about $123. Multiplying this figure by the 5,400 current active household goods motor carriers yields a total annual cost to the industry of about $664,000. While we anticipate that most motor carriers will file online reports, some household goods motor carriers would file reports by mail. Carriers would bear the costs of mailing forms. Although the number of motor carriers who would choose to file by mail is unknown, it is unlikely to be very large. For the purposes of the Agency's regulatory analysis, FMCSA assumed that 25 percent of carriers would choose to file by mail. Assuming 25 percent of motor carriers opt to mail forms, FMCSA would expect to receive 5,400 forms by mail a year; and mailing costs would amount to $5,400 annually. Regarding benefits, this rule is intended to improve the Agency's oversight of the nation's household goods motor carriers and make complaint data more accessible to the public. FMCSA has experienced an increase in the number of complaints it receives against household goods motor carriers in recent years, which could be an indication that customer service in this industry may be declining. We anticipate that this requirement will enable the Agency to better detect household goods motor carriers that are potentially not complying with Federal regulations governing the movement of household goods, including those governing the payment of loss and damage claims. Improved monitoring should reduce the number of complaints against this segment of the motor carrier industry by assisting the Agency in identifying companies that may be out of compliance with consumer protection regulations. Once identified, the Agency can monitor these carriers to ensure compliance with consumer protection guidelines or take action to remove them from the household goods moving segment of the industry, if appropriate. Although the Agency cannot quantify these benefits at this time, we believe that the rule will result in fewer damaged goods, better customer satisfaction, and fewer instances in which carriers attempt to extort inflated payments from individuals by refusing to deliver their goods. These benefits would result from providing customers with improved information on past carrier performance. This information would enable customers to select carriers which do not have poor customer service, which would result in more business for carriers that protect customer goods and honor pricing and damaged goods reimbursement agreements. A copy of the full regulatory evaluation is in the docket. The Office of Management and Budget
(OMB)has reviewed this document. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995
(PRA)(44 U.S.C. 3501 *et seq.* ), Federal agencies must determine whether requirements contained in rulemakings are subject to information collection provisions of the PRA and, if they are, obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. This rulemaking is subject to those provisions because it requires motor carriers of household goods to submit quarterly reports. FMCSA will seek approval of the information collection requirements proposed in this NPRM and the proposed Household Goods Motor Carrier Quarterly Report form in the revised information collection for “Transportation of Household Goods; Consumer Protection,” OMB No. 2126-0025, which covers all information collections included under 49 CFR part 375. The Agency expects the information proposed to be collected will assist individual shippers of household goods in their commercial dealings with household goods motor carriers engaged in interstate commerce, thereby providing a desirable consumer protection service. The collection of information would be used by prospective household goods shippers to make informed decisions about contracts and services to be ordered, executed, and settled within the interstate household goods carrier industry. The Agency also believes the information will help consumer advocacy groups to assist household goods shippers to make informed decisions. Assumptions used for calculation of the additional information collection burdens included in this proposal are the following:
(1)There are currently approximately 5,400 interstate household goods motor carriers;
(2)75 percent of the quarterly reports of consumer complaints will be collected electronically; and
(3)it will take motor carriers approximately 2 hours to compile and file the quarterly reports. Household goods motor carriers may file reports online or via regular mail. For online submission, carriers would use an Internet portal created by the Agency to fill out an online form that would require the carrier to submit specific information. The Agency would therefore specify exactly what data carriers must report. A paper version of this online form would also be created for carriers that prefer to file the required information by mail. It is anticipated that most reports will be compiled and filed via the online report filing system, by administrative staff in motor carrier offices. Regardless of which method of transmission is chosen, FMCSA expects the burden for compiling the reports will be the same. The Agency assumes that, on average, it will take carriers approximately 2 hours to compile reports. Since carriers must file quarterly reports, this amounts to an annual per-carrier burden of 8 hours. Multiplying this figure by the 5,400 current active household goods motor carriers, we estimate a total annual additional burden of 43,200 hours. See Table 1. Table 1.—Current and Proposed Information Collection Burdens OMB approval No. Burden hours currently approved Additional burden hours proposed Proposed total 2126-0025 4,552,737 43,200 *4,595,937 *Rounded up to 4,600,000 for the 2126-0025 estimate. FMCSA will round the number up to 4,600,000 and ask OMB to approve this rounded number as the annual burden hour estimate. The Agency invites comment on this information collection analysis. Regulatory Flexibility Act FMCSA has completed a preliminary analysis of the burdens on small businesses as required under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) and the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 601 note), and found that this rulemaking will increase reporting requirements for businesses in the household goods moving industry. FMCSA expects that compiling and submitting quarterly reports on complaints received will impose a modest cost on household goods motor carriers. FMCSA's Motor Carrier Management Information System (MCMIS) had 5,400 active interstate household goods carriers in the United States as of April 2006. 7 Household goods carriers in both interstate and intrastate commerce brought in a total of approximately $12.7 billion in revenue in 2002. They employed more than 111,000 people, with a total payroll of over $3.1 billion. 8 7 FMCSA Analysis Division. MCMIS Data Query on Active Household Goods Carriers. April 4, 2006. 8 U.S. Census Bureau. Truck Transportation: 2002. U.S. Department of Commerce, Economics and Statistics Administration. October, 2004. The MCMIS data indicate that the household goods segment employed more than 165,000 drivers as of April 2006. These numbers are somewhat higher than those included in the 2002 Census report. The largest 20 household goods carriers employ 110,541 of these drivers, or roughly 67 percent of the drivers employed by this segment. Some 4,926 household goods carriers employ 20 or fewer drivers, and 4,489 employ 10 or fewer drivers. This industry is made up of a few very large carriers and many small-to-medium sized businesses. The Small Business Administration's revenue threshold for small businesses in the used household and office goods moving sector (NAICS code 484210) is $23.5 million in annual revenue. 9 The Agency believes that the vast majority of motor carriers in this sector would fall under this threshold. Census Bureau data provide evidence that a large majority of household goods carriers are small businesses. 9 Small Business Administration. “Table of Small Business Size Standards Matched to North American Industry Classification System Codes” Effective October 1, 2007. Available online at *http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf* . The Economic Census collects data on the size of establishments in various sectors of the economy. According to the 2002 data, 125 of the 7,225 establishments in the Used Household and Office Goods Moving segment of the economy had revenues that exceeded $10 million per year. 10 These data imply that as many as 98 percent of household goods carriers would qualify as small businesses. However, given that some firms have more than one establishment, the Census figures may underestimate the size of firms in the industry. 10 The Economic Census counts each storefront or business location of a firm as a separate establishment, which is why there are more establishments than firms in the household goods moving industry. Also, the Census Bureau found a total of 8,642 firms in the household goods moving industry, but only 7,225 were in business for the entire year, which is the number cited above. The Census Bureau also does not collect data on whether the firm is engaged in interstate commerce or exclusively in intrastate commerce. Thus, wholly intrastate firms not regulated by FMCSA are shown in the Economic Census data. This rule would require interstate household goods carriers to submit quarterly reports containing the following data:
(1)The number of shipments by the carrier;
(2)the number and general category of complaints lodged by consumers with the carrier;
(3)the number of claims for loss and damage exceeding $500 filed with the carrier; and
(4)the number of such claims resolved, declined, and pending during the reporting period. The information requested is not specialized in nature, and would not require specialized personnel to compile or submit. A general office worker should be capable of compiling and submitting the required information. FMCSA estimates that compiling the information will cost household goods carriers approximately 2 hours per quarter worth of time, which has an economic value, when aggregated across the industry, of $664,000 per year. This would be about $123 per carrier annually. While some carriers may incur additional costs by opting to submit the information by mail rather than electronically, these costs will be negligible. Accordingly, the Administrator of the FMCSA hereby certifies that this proposal will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Imposed Upon State, Local, and Tribal Governmental Entities The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 1532) requires each agency to assess the effects of its regulatory actions on State, local, and tribal governments and the private sector. Any agency promulgating a final rule likely to result in a Federal mandate requiring expenditures by a State, local or tribal government or by the private sector of $128.1 million or more in any one year must prepare a written statement incorporating various assessments, estimates, and descriptions that are delineated in the Act. FMCSA has determined that the quarterly report proposed in this rulemaking would not have an impact of $128.1 million or more in any one year. Environmental Impacts FMCSA analyzed this rule under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ) (NEPA), the Council on Environmental Quality Regulations Implementing NEPA (40 CFR 1500-1508), and FMCSA's NEPA Implementation Order (69 FR 6980, March 1, 2004). This rule would be categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under paragraphs 6.m.(6) and 6.q of Appendix 2 to FMCSA's Order as regulations implementing data collection activities. This rule would merely amend the information collection requirements for household goods carriers to include a quarterly report of the number of shipments, complaints, and claims. We have also analyzed this proposed rule under the Clean Air Act, as amended
(CAA)section 176(c), (42 U.S.C. 7401 *et seq.* ) and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it involves rulemaking and policy development and issuance. See 40 CFR 93.153(c)(2). It would not result in any emissions increase nor would it have any potential to result in emissions that are above the general conformity rule's *de minimis* emission threshold levels. Moreover, it is reasonably foreseeable that the rule would not increase total CMV mileage, change the routing of CMVs, how CMVs operate, or the CMV fleet-mix of motor carriers. This action merely establishes a quarterly reporting regulation applicable to the business practices of household goods motor carriers. Privacy Impact Assessment FMCSA conducted a privacy impact assessment of this proposed rule as required by section 522(a)(5) of the FY 2005 Omnibus Appropriations Act, Public Law 108-447, 118 Stat. 3268 (December 8, 2004) [set out as a note to 5 U.S.C. 552a]. FMCSA has determined that the changes proposed in this rulemaking would not have privacy impacts. The quarterly reports FMCSA proposes that household goods motor carriers would submit under this proposal would not include personally identifiable information about individual shippers or motor carriers. Executive Order 13045 (Protection of Children) FMCSA has analyzed this proposed action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. FMCSA certifies that this proposed action would not cause any environmental risk to health or safety that may disproportionately affect children. Executive Order 12630 (Taking of Private Property) FMCSA has analyzed this proposed rule under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. FMCSA does not anticipate that this proposed action would effect a taking of private property or otherwise have taking implications under Executive Order 12630. Executive Order 13132 (Federalism) This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and FMCSA has preliminarily determined that this proposed action would not warrant the preparation of a Federalism assessment. FMCSA has determined that this proposed action would not affect the States' ability to discharge traditional State government functions. Executive Order 12988 (Civil Justice Reform) This proposed action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Executive Order 12372 (Intergovernmental Review) The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this NPRM. Executive Order 13211 (Energy Supply, Distribution, or Use) We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a significant energy action within the meaning of section 4(b) of the Executive Order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required. Executive Order 13175 (Tribal Consultation) The FMCSA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial compliance costs on Indian tribal governments; and will not preempt tribal law. Therefore, a tribal summary impact statement is not required. List of Subjects in 49 CFR Part 375 Advertising, Arbitration, Consumer protection, Freight, Highways and roads, Insurance, Motor carriers, Moving of household goods, Reporting and recordkeeping requirements. In consideration of the foregoing, FMCSA proposes to amend title 49, Code of Federal Regulations, by revising part 375 as set forth below. PART 375—TRANSPORTATION OF HOUSEHOLD GOODS IN INTERSTATE COMMERCE; CONSUMER PROTECTION REGULATIONS 1. Revise the authority citation for part 375 to read as follows: Authority: 5 U.S.C. 553; 49 U.S.C. 13301, 13704, 13707, 14104, 14706; sec. 4214 of Pub. L. 109-59, 119 Stat. 1144; and 49 CFR 1.73. 2. Amend 49 CFR 375.105 by revising paragraph
(b)to read as follows: § 375.105 What are the information collection requirements of this part?
(b)The information collection requirements are found in the following sections: Section 375.107, Section 375.205, Section 375.207, Section 375.209, Section 375.211, Section 375.213, Section 375.215, Section 375.217, Section 375.303, Section 375.401, Section 375.403, Section 375.405, Section 375.409, Section 375.501, Section 375.503, Section 375.505, Section 375.507, Section 375.515, Section 375.519, Section 375.521, Section 375.605, Section 375.607, Section 375.609, Section 375.803, Section 375.805, and Section 375.807. 3. Add § 375.107 to read as follows: § 375.107 What information must I provide in a quarterly report to FMCSA?
(a)You must submit on a quarterly basis a report summarizing all of the following:
(1)The number of shipments that originate, and are delivered for individual shippers during the reporting period by your company.
(2)The total number of complaints (representing both oral and written complaints) lodged by consumers with your company in each of the following general categories:
(i)Rates or charges;
(ii)Service (including, but not limited to, failure to timely pick up or deliver household goods or refusal to weigh a shipment upon a request by an individual shipper);
(iii)Loss and damage;
(iv)How claims are handled; and
(v)Other.
(3)The number of claims filed against your company for loss and damage in excess of $500.
(4)The number of claims for loss and damage in excess of $500 settled during the reporting period.
(5)The number of claims for loss and damage in excess of $500 declined in the reporting period.
(6)The number of claims for loss and damage in excess of $500 that are pending at the close of the reporting period.
(b)You must submit the quarterly report on Form MCSA—(form number will be issued in the final rule), Household Goods Motor Carrier Quarterly Report. You may submit the quarterly report electronically by completing the form on our Web site at (the address will be provided in the final rule). If you do not have access to Internet service for online filing, you may submit the quarterly report by mail to (the address will be provided in the final rule).
(c)Quarterly reports are due as follows: Table to 49 CFR 375.107(c) Quarter Due 1st Quarter January 1-March 31 April 30. 2nd Quarter April 1-June 30 July 31. 3rd Quarter July 1-September 30 October 31. 4th Quarter October 1-December 31 January 31.
(d)You must always submit a quarterly report, even when the quarterly count for all categories is zero. Form MCSA-XX Household Goods Motor Carrier Quarterly Report Submission Date: Check here if this is an amended report: Company Name: Company Address: City: State: Zip: Individual Point of Contact: Phone: Fax Phone: E-mail: USDOT#: MC#: Reporting Period: Year: Quarter: 1st ☐ 2nd ☐ 3rd ☐ 4th ☐ Summary of Complaint and Claim Information for the Reporting Period: 1. Number of shipments that originate and are delivered for individual shippers during the reporting period: 2. Number of oral and written complaints in these general categories that consumers lodged against the company: A. Rates or Charges B. Service C. Loss and Damage D. How Claims are Handled E. Other 3. Number of claims filed with you for loss and damage in excess of $500: 4. Number of claims for loss and damage in excess of $500 settled during the reporting period: 5. Number of claims for loss and damage in excess of $500 declined in the reporting period: 6. Number of claims for loss and damage in excess of $500 pending at the close of the reporting period: Issued on: February 6, 2008 John H. Hill, Administrator. [FR Doc. E8-2867 Filed 2-19-08; 8:45 am] BILLING CODE 4910-EX-P 73 34 Wednesday, February 20, 2008 Notices DEPARTMENT OF AGRICULTURE Rural Housing Service Notice of Funds Availability for the Section 533 Housing Preservation Grants for Fiscal Year 2008 *Announcement Type:* Initial Notice inviting applications from qualified applicants for Fiscal Year 2008. *Catalog of Federal Domestic Assistance Numbers (CFDA):* 10.433. SUMMARY: The Rural Housing Service (RHS), an agency within Rural Development, announces that it is soliciting competitive applications under its Housing Preservation Grant
(HPG)program. The HPG program is a grant program which provides qualified public agencies, private nonprofit organizations, which may include, but not be limited to, faith-based and community organizations, and other eligible entities grant funds to assist very low- and low-income homeowners in repairing and rehabilitating their homes in rural areas. In addition, the HPG program assists rental property owners and cooperative housing complexes in repairing and rehabilitating their units if they agree to make such units available to low- and very low-income persons. This action is taken to comply with Agency regulations found in 7 CFR part 1944, subpart N, which require the Agency to announce the opening and closing dates for receipt of preapplications for HPG funds from eligible applicants. The intended effect of this Notice is to provide eligible organizations notice of these dates. DATES: The closing deadline for receipt of all applications in response to this Notice is 5 p.m., local time for each Rural Development State Office on April 21, 2008. The application closing deadline is firm as to date and hour. RHS will not consider any application that is received after the closing deadline. Applicants intending to mail applications must provide sufficient time to permit delivery on or before the closing deadline date and time. Acceptance by the United States Postal Service or private mailer does not constitute delivery. Facsimile
(FAX)and postage due applications will not be accepted. SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The reporting requirements contained in this Notice have been approved by the Office of Management and Budget under Control Number 0575-0115. Program Administration I. Funding Opportunities Description The funding instrument for the HPG Program will be a grant agreement. The term of the grant can vary from 1 to 2 years, depending on available funds and demand. No maximum or minimum grant levels have been established at the National level. You should contact the Rural Development State Office to determine the allocation. II. Award Information For Fiscal Year 2008, $9,593,704 is available for the HPG Program. The total includes $656,704 in carryover funds. A set-aside of $595,800 has been established for grants located in Empowerment Zones, Enterprise Communities, and Rural Economic Area Partnership Zones and other funds will be distributed under a formula allocation to states pursuant to 7 CFR part 1940, subpart L, “Methodology and Formulas for Allocation of Loan and Grant Program Funds.” Decisions on funding will be based on pre-applications. III. Eligibility Information 7 CFR part 1944, subpart N provides details on what information must be contained in the preapplication package. Entities wishing to apply for assistance should contact the Rural Development State Office to receive further information, the State allocation of funds, and copies of the preapplication package. Eligible entities for these competitively awarded grants include state and local governments, nonprofit corporations, which may include, but not be limited to faith-based and community organizations, Federally recognized Indian tribes, and consortia of eligible entities. Federally recognized Indian tribes, pursuant to 7 CFR 1944.674, are exempt from the requirement to consult with local leaders including announcing the availability of its statement of activities for review in a newspaper. As part of the application, all applicants must also provide a Dun and Bradstreet Data Universal Numbering System
(DUNS)number. As required by the Office of Management and Budget (OMB), all grant applicants must provide a DUNS number when applying for Federal grants, on or after October 1, 2003. Organizations can receive a DUNS number at no cost by calling the dedicated toll-free DUNS number request line at 1-866-705-5711. Additional information concerning this requirement is provided in a policy directive issued by OMB and published in the **Federal Register** on June 27, 2003 (68 FR 38402-38405). To comply with the President's Management Agenda, the Department of Agriculture is participating as a partner in the new Government-wide Grants.gov site in FY 2008. Housing Preservation Grants [Catalog of Federal Domestic Assistance No. 10.433] is one of the programs included at this Web site. You may access the electronic grant application for Housing Preservation Grants at: *http://www.grants.gov* . If you are an applicant under the Housing Preservation Grant Program, you may submit your application to the Agency in either electronic or paper format. Please be mindful that the application deadline for electronic format differs from the deadline for paper format. The electronic format deadline will be based on Eastern Standard Time. The paper format deadline is local time for each Rural Development State Office. Users of Grants.gov will be able to download a copy of the application package, complete it offline, and then upload and submit the application via the *Grants.gov* site. You may not e-mail an electronic copy of a grant application to USDA Rural Development; however, the Agency encourages your participation in *Grants.gov.* The following are useful tips and instructions on how to use the Web site: • When you enter the *Grants.gov* site, you will find information about submitting an application electronically through the site as well as the hours of operation. USDA Rural Development strongly recommends that you do not wait until the application deadline date to begin the application process through *Grants.gov.* To use *Grants.gov,* applicants must have a DUNS number. • You may submit all documents electronically through the Web site, including all information typically included on the Application for Rural Housing Preservation Grants, and all necessary assurances and certifications. • Your application must comply with any page limit requirements described in this Notice. • After you electronically submit your application through the Web site, you will receive an automatic acknowledgement from *Grants.gov* that contains a *Grants.gov* tracking number. • RHS may request that you provide original signatures on forms at a later date. • If you experience technical difficulties on the closing date and are unable to meet the 5 p.m. (Eastern Standard Time) deadline, print out your application and submit it to your State Office; you must meet the closing date and local time deadline. • Please note that you must locate the downloadable application package for this program by the CFDA Number or FedGrants Funding Opportunity Number, which can be found at *http://www.fedgrants.gov.* IV. Application and Submission Information Applicants wishing to apply for assistance must make its statement of activities available to the public for comment. The applicant(s) must announce the availability of its statement of activities for review in a newspaper of general circulation in the project area and allow at least 15 days for public comment. The start of this 15-day period must occur no later than 16 days prior to the last day for acceptance of pre-applications by USDA Rural Development. Applicants must also contact the Rural Development State Office serving the place in which they desire to submit an application to receive further information and copies of the application package. Rural Development will date and time stamp incoming applications to evidence timely receipt, and, upon request, will provide the applicant with a written acknowledgment of receipt. A listing of Rural Development State Offices, their addresses, telephone numbers, and person to contact follows: Note: Telephone numbers listed are not toll-free. Alabama State Office Suite 601, Sterling Centre, 4121 Carmichael Road, Montgomery, AL 36106-3683,
(334)279-3455, TDD
(334)279-3495, Judith Druckemiller. Alaska State Office 800 West Evergreen, Suite 201, Palmer, AK 99645,
(907)761-7740, TDD
(907)761-8905, Debbie I. Davis. Arizona State Office Phoenix Courthouse and Federal Building, 230 North First Ave., Suite 206, Phoenix, AZ 85003-1706,
(602)280-8768, TDD
(602)280-8706, Carol Torres. Arkansas State Office 700 W. Capitol Ave., Rm. 3416, Little Rock, AR 72201-3225,
(501)301-3258, TDD
(501)301-3063, Clinton King. California State Office 430 G Street, #4169, Davis, CA 95616-4169,
(530)792-5821, TDD
(530)792-5848, Debra Moretton. Colorado State Office 655 Parfet Street, Room E100, Lakewood, CO 80215,
(720)544-2923, TDD
(800)659-2656, Mary Summerfield. Connecticut Served by Massachusetts State Office. Delaware and Maryland State Office 1221 College Park Drive, Suite 200, Dover, DE 19904,
(302)857-3615, TDD
(302)857-3585, Pat Baker. Florida & Virgin Islands State Office 4440 NW. 25th Place, Gainesville, FL 32606-6563,
(352)338-3465, TDD
(352)338-3499, Elizabeth M. Whitaker. Georgia State Office Stephens Federal Building, 355 E. Hancock Avenue, Athens, GA 30601-2768,
(706)546-2164, TDD
(706)546-2034, Wayne Rogers. Hawaii State Office (Services all Hawaii, American Samoa, Guam, and Western Pacific), Room 311, Federal Building, 154 Waianuenue Avenue, Hilo, HI 96720,
(808)933-8300, TDD
(808)933-8321, Gayle Kuheana. Idaho State Office Suite A1, 9173 West Barnes Dr., Boise, ID 83709,
(208)378-5628, TDD
(208)378-5644, Joyce Weinzetl. Illinois State Office 2118 West Park Court, Suite A, Champaign, IL 61821-2986,
(217)403-6222, TDD
(217)403-6240, Barry L. Ramsey. Indiana State Office 5975 Lakeside Boulevard, Indianapolis, IN 46278,
(317)290-3100 (ext. 423), TDD
(317)290-3343, Stephen Dye. Iowa State Office 210 Walnut Street, Room 873, Des Moines, IA 50309,
(515)284-4666, TDD
(515)284-4858, Mary Beth Juergens. Kansas State Office 1303 SW First American Place, Suite 100, Topeka, KS 66604-4040,
(785)271-2721, TDD
(785)271-2767, Virginia M. Hammersmith. Kentucky State Office 771 Corporate Drive, Suite 200, Lexington, KY 40503,
(859)224-7325, TDD
(859)224-7422, Beth Moore. Louisiana State Office 3727 Government Street, Alexandria, LA 71302,
(318)473-7962, TDD
(318)473-7655, Yvonne R. Emerson. Maine State Office 967 Illinois Ave., Suite 4, P.O. Box 405, Bangor, ME 04402-0405,
(207)990-9110, TDD
(207)942-7331, Bob Nadeau. Maryland Served by Delaware State Office. Massachusetts, Connecticut, & Rhode Island State Office 451 West Street, Suite 2, Amherst, MA 01002,
(413)253-4315, TDD
(413)253-4590, Paul Geoffroy. Michigan State Office 3001 Coolidge Road, Suite 200, East Lansing, MI 48823,
(517)324-5192, TDD
(517)337-6795, Ghulam R. Simbal. Minnesota State Office 375 Jackson Street Building, Suite 410, St. Paul, MN 55125,
(651)602-7804, TDD
(651)602-7830, Thomas Osborne. Mississippi State Office Federal Building, Suite 831, 100 W. Capitol Street, Jackson, MS 39269,
(601)965-4325, TDD
(601)965-5850, Darnella Smith-Murray. Missouri State Office 601 Business Loop 70 West, Parkade Center, Suite 235, Columbia, MO 65203,
(573)876-9303, TDD
(573)876-9480, Becky Eftink. Montana State Office 900 Technology Blvd., Suite B, Bozeman, MT 59771,
(406)585-2515, TDD
(406)585-2562, Deborah Chorlton. Nebraska State Office Federal Building, Room 152, 100 Centennial Mall N., Lincoln, NE 68508,
(402)437-5557, TDD
(402)437-5093, Lanae Brasch. Nevada State Office 1390 South Curry Street, Carson City, NV 89703-9910,
(775)887-1222 (ext. 14), TDD
(775)885-0633, Mona Sargent. New Hampshire State Office Concord Center, Suite 218, Box 317, 10 Ferry Street, Concord, NH 03301-5004,
(603)223-6046, TDD
(603)229-0536, Sandra Hawkins. New Jersey State Office 5th Floor North, Suite 500, 8000 Midlantic Drive, Mt. Laurel, NJ 08054,
(856)787-7740, TDD
(856)787-7784, George Hyatt, Jr. New Mexico State Office 6200 Jefferson St., NE., Room 255, Albuquerque, NM 87109,
(505)761-4944, TDD
(505)761-4938, Carmen N. Lopez. New York State Office The Galleries of Syracuse, 441 S. Salina Street, Suite 357, 5th Floor, Syracuse, NY 13202,
(315)736-3316 (ext. 128), TDD
(315)477-6447, Tia Shulkin. North Carolina State Office 4405 Bland Road, Suite 260, Raleigh, NC 27609,
(919)873-2066, TDD
(919)873-2003, William A. Hobbs. North Dakota State Office Federal Building, Room 208, 220 East Rosser, P.O. Box 1737, Bismarck, ND 58502,
(701)530-2046, TDD
(701)530-2113, Barry Borstad. Ohio State Office Federal Building, Room 507, 200 North High Street, Columbus, OH 43215-2477,
(614)255-2409, TDD
(614)255-2554, Cathy Simmons. Oklahoma State Office 100 USDA, Suite 108, Stillwater, OK 74074-2654,
(405)742-1070, TDD
(405)742-1007, Ivan Graves. Oregon State Office 101 SW. Main, Suite 1410, Portland, OR 97204-3222,
(503)414-3340, TDD
(503)414-3387, Barb Brandon. Pennsylvania State Office One Credit Union Place, Suite 330, Harrisburg, PA 17110-2996,
(717)237-2282, TDD
(717)237-2261, Martha E. Hanson. Puerto Rico State Office IBM Building, Suite 601, Munoz Rivera Ave., #654, San Juan, PR 00918,
(787)766-5095 (ext. 249), TDD
(787)766-5332, Lourdes Colon. Rhode Island Served by Massachusetts State Office. South Carolina State Office Strom Thurmond Federal Building, 1835 Assembly Street, Room 1007, Columbia, SC 29201,
(803)253-3432, TDD
(803)765-5697, Larry D. Floyd. South Dakota State Office Federal Building, Room 210, 200 Fourth Street, SW., Huron, SD 57350,
(605)352-1132, TDD
(605)352-1147, Roger Hazuka or Pam Reilly. Tennessee State Office Suite 300, 3322 West End Avenue, Nashville, TN 37203-1084,
(615)783-1375, TDD
(615)783-1397, Larry Kennedy. Texas State Office Federal Building, Suite 102, 101 South Main, Temple, TX 76501,
(254)742-9767, TDD
(254)742-9712, Linda Sultenfuss. Utah State Office Wallace F. Bennett Federal Building, 125 S. State Street, Room 4311, Salt Lake City, UT 84138,
(801)524-4329, TDD
(801)524-3309, Kristine Dahlberg. Vermont State Office City Center, 3rd Floor, 89 Main Street, Montpelier, VT 05602,
(802)828-6021, TDD
(802)223-6365, Heidi Setien. Virgin Islands Served by Florida State Office. Virginia State Office Culpeper Building, Suite 238, 1606 Santa Rosa Road, Richmond, VA 23229,
(804)287-1596, TDD
(804)287-1753, CJ Michels. Washington State Office 1835 Black Lake Blvd., Suite B, Olympia, WA 98512,
(360)704-7730, TDD
(360)704-7742, Robert L. Lund. Western Pacific Territories Served by Hawaii State Office. West Virginia Parkersburg West Virginia County Office, 91 Boyles Lane, Parkersburg, WV 26104,
(304)422-9070, TDD
(304)284-4836, Penny Thaxton. Wisconsin State Office 4949 Kirschling Court, Stevens Point, WI 54481,
(715)345-7608 (ext. 111), TDD
(715)345-7614, Peter Kohnen. Wyoming State Office P.O. Box 82601, Casper, WY 82602-5006,
(307)233-6716, TDD
(307)233-6733, Alan Brooks. FOR FURTHER INFORMATION CONTACT: For general information, applicants may contact Bonnie Edwards-Jackson, Senior Loan Specialist, Multi-Family Housing Processing Division, USDA Rural Development, Stop 0781, 1400 Independence Avenue, SW., Washington, DC 20250-0781, telephone
(202)690-0759 (voice) (this is not a toll free number) or
(800)877-8339 (TDD-Federal Information Relay Service) or via e-mail at, *Bonnie.Edwards@wdc.usda.gov.* V. Application Review Information All applications for Section 533 funds must be filed with the appropriate Rural Development State Office and must meet the requirements of this Notice and 7 CFR part 1944, subpart N. Pre-applications determined not eligible and/or not meeting the selection criteria will be notified by the Rural Development State Office. All applicants will file an original and two copies of Standard Form
(SF)424, “Application For Federal Assistance,” and supporting information with the appropriate Rural Development State Office. A pre-application package, including SF-424, is available in any Rural Development State Office. All pre-applications shall be accompanied by the following information, which Rural Development will use to determine the applicant's eligibility to undertake the HPG program and to evaluate the pre-application under the project selection criteria of § 1944.679 of 7 CFR part 1944, subpart N.
(a)A statement of activities proposed by the applicant for its HPG program as appropriate to the type of assistance the applicant is proposing, including:
(1)A complete discussion of the type of and conditions for financial assistance for housing preservation, including whether the request for assistance is for a homeowner assistance program, a rental property assistance program, or a cooperative assistance program;
(2)The process for selecting recipients for HPG assistance, determining housing preservation needs of the dwelling, performing the necessary work, and monitoring/inspecting work performed;
(3)A description of the process for identifying potential environmental impacts in accordance with § 1944.672 of 7 CFR part 1944, subpart N, and the provisions for compliance with Stipulation I, A-G of the Programmatic Memorandum of Agreement, also known as PMOA, (RD Instruction 2000-FF, available in any Rural Development State Office) in accordance with § 1944.673(b) of 7 CFR part 1944, subpart N;
(4)The development standard(s) the applicant will use for the housing preservation work; and, if not the Rural Development standards for existing dwellings, the evidence of its acceptance by the jurisdiction where the grant will be implemented;
(5)The time schedule for completing the program;
(6)The staffing required to complete the program;
(7)The estimated number of very low- and low-income minority and nonminority persons the grantee will assist with HPG funds; and, if a rental property or cooperative assistance program, the number of units and the term of restrictive covenants on their use for very low- and low-income;
(8)The geographical area(s) to be served by the HPG program;
(9)The annual estimated budget for the program period based on the financial needs to accomplish the objectives outlined in the proposal. The budget should include proposed direct and indirect administrative costs, such as personnel, fringe benefits, travel, equipment, supplies, contracts, and other cost categories, detailing those costs for which the grantee proposes to use the HPG grant separately from non-HPG resources, if any. The applicant budget should also include a schedule (with amounts) of how the applicant proposes to draw HPG grant funds, i.e., monthly, quarterly, lump sum for program activities, etc.;
(10)A copy of a indirect cost proposal as required in 7 CFR parts 3015, 3016, and 3019, when the applicant has another source of federal funding in addition to the Rural Development HPG program;
(11)A brief description of the accounting system to be used;
(12)The method of evaluation to be used by the applicant to determine the effectiveness of its program which encompasses the requirements for quarterly reports to Rural Development in accordance with § 1944.683(b) of 7 CFR part 1944, subpart N and the monitoring plan for rental properties and cooperatives (when applicable) according to § 1944.689 of 7 CFR part 1944, subpart N;
(13)The source and estimated amount of other financial resources to be obtained and used by the applicant for both HPG activities and housing development and/or supporting activities;
(14)The use of program income, if any, and the tracking system used for monitoring same;
(15)The applicant's plan for disposition of any security instruments held by them as a result of its HPG activities in the event of its loss of legal status;
(16)Any other information necessary to explain the proposed HPG program; and
(17)The outreach efforts outlined in § 1944.671(b) of 7 CFR part 1944, subpart N.
(b)Complete information about the applicant's experience and capacity to carry out the objectives of the proposed HPG program.
(c)Evidence of the applicant's legal existence, including, in the case of a private nonprofit organization, which may include, but not be limited to, faith-based and community organizations, a copy of, or an accurate reference to, the specific provisions of State law under which the applicant is organized; a certified copy of the applicant's Articles of Incorporation and Bylaws or other evidence of corporate existence; certificate of incorporation for other than public bodies; evidence of good standing from the State when the corporation has been in existence 1 year or more; and the names and addresses of the applicant's members, directors and officers. If other organizations are members of the applicant-organization, or the applicant is a consortium, pre-applications should be accompanied by the names, addresses, and principal purpose of the other organizations. If the applicant is a consortium, documentation showing compliance with paragraph (4)(ii) under the definition of “organization” in § 1944.656 of 7 CFR part 1944, subpart N must also be included.
(d)For a private nonprofit entity, which may include, but not be limited to faith-based organizations, the most recent audited statement and a current financial statement dated and signed by an authorized officer of the entity showing the amounts and specific nature of assets and liabilities together with information on the repayment schedule and status of any debt(s) owed by the applicant.
(e)A brief narrative statement which includes information about the area to be served and the need for improved housing (including both percentage and the actual number of both low-income and low-income minority households and substandard housing), the need for the type of housing preservation assistance being proposed, the anticipated use of HPG resources for historic properties, the method of evaluation to be used by the applicant in determining the effectiveness of its efforts.
(f)Applicant must submit an original and one copy of Form RD 1940-20, “Request for Environmental Information,” prepared in accordance with Exhibit F-1 of RD Instruction 1944-N (available in any Rural Development State Office).
(g)Applicant must also submit a description of its process for:
(1)Identifying and rehabilitating properties listed on or eligible for listing on the National Register of Historic Places;
(2)Identifying properties that are located in a floodplain or wetland;
(3)Identifying properties located within the Coastal Barrier Resources System; and
(4)Coordinating with other public and private organizations and programs that provide assistance in the rehabilitation of historic properties (Stipulation I, D, of the PMOA, RD Instruction 2000-FF, available in any Rural Development State Office).
(h)The applicant must also submit evidence of the State Historic Preservation Office's, also known as SHPO, concurrence in the proposal, or in the event of nonconcurrence, a copy of SHPO's comments together with evidence that the applicant has received the Advisory Council on Historic Preservation's advice as to how the disagreement might be resolved, and a copy of any advice provided by the Council.
(i)The applicant must submit written statements and related correspondence reflecting compliance with § 1944.674(a) and
(c)of 7 CFR part 1944, subpart N regarding consultation with local government leaders in the preparation of its program and the consultation with local and state government pursuant to the provisions of Executive Order 12372.
(j)The applicant is to make its statement of activities available to the public for comment prior to submission to Rural Development pursuant to § 1944.674(b) of 7 CFR part 1944, subpart N. The application must contain a description of how the comments (if any were received) were addressed.
(k)The applicant must submit an original and one copy of Form RD 400-1, “Equal Opportunity Agreement,” and Form RD 400-4, “Assurance Agreement,” in accordance with § 1944.676 of 7 CFR part 1944, subpart N. Applicants should review 7 CFR part 1944, subpart N for a comprehensive list of all application requirements. VI. Selection Criteria The Rural Development State Offices will utilize the following project selection criteria for applicants in accordance with § 1944.679 of 7 CFR part 1944, subpart N:
(a)Providing a financially feasible program of housing preservation assistance. “Financially feasible” is defined as proposed assistance which will be affordable to the intended recipient or result in affordable housing for very low- and low-income persons.
(b)Serving eligible rural areas with a concentration of substandard housing for households with very low- and low-income.
(c)Being an eligible applicant as defined in § 1944.658 of 7 CFR part 1944, subpart N.
(d)Meeting the requirements of consultation and public comment in accordance with § 1944.674 of 7 CFR part 1944, subpart N.
(e)Submitting a complete preapplication as outlined in § 1944.676 of 7 CFR part 1944, subpart N. For applicants meeting all of the requirements listed above, the Rural Development State Offices will use weighted criteria in accordance with 7 CFR part 1944, subpart N as selection for the grant recipients. Each preapplication and its accompanying statement of activities will be evaluated and, based solely on the information contained in the preapplication, the applicant's proposal will be numerically rated on each criteria within the range provided. The highest-ranking applicant(s) will be selected based on allocation of funds available to the state.
(a)Points are awarded based on the percentage of very low-income persons that the applicant proposes to assist, using the following scale:
(1)More than 80%: 20 points.
(2)61% to 80%: 15 points.
(3)41% to 60%: 10 points.
(4)20% to 40%: 5 points.
(5)Less than 20%: 0 points.
(b)The applicant's proposal may be expected to result in the following percentage of HPG fund use (excluding administrative costs) to total cost of unit preservation. This percentage reflects maximum repair or rehabilitation with the least possible HPG funds due to leveraging, innovative financial assistance, owner's contribution or other specified approaches. Points are awarded based on the following percentage of HPG funds (excluding administrative costs) to total funds:
(1)50% or less: 20 points.
(2)51% to 65%: 15 points.
(3)66% to 80%: 10 points.
(4)81% to 95%: 5 points.
(5)96% to 100%: 0 points.
(c)The applicant has demonstrated its administrative capacity in assisting very low- and low-income persons to obtain adequate housing based on the following:
(1)The organization or a member of its staff has 2 or more years experience successfully managing and operating a rehabilitation or weatherization type program: 10 points.
(2)The organization or a member of its staff has 2 or more years experience successfully managing and operating a program assisting very low- and low-income persons obtain housing assistance: 10 points.
(3)If the organization has administered grant programs, there are no outstanding or unresolved audit or investigative findings which might impair carrying out the proposal: 10 points.
(d)The proposed program will be undertaken entirely in rural areas outside Metropolitan Statistical Areas, also known as MSAs, identified by Rural Development as having populations below 10,000 or in remote parts of other rural areas (i.e., rural areas contained in MSAs with less than 5,000 population) as defined in § 1944.656 of 7 CFR part 1944, subpart N: 10 points.
(e)The program will use less than 20 percent of HPG funds for administration purposes:
(1)More than 20%: Not eligible.
(2)20%: 0 points.
(3)19%: 1 point.
(4)18%: 2 points.
(5)17%: 3 points.
(6)16%: 4 points.
(7)15% or less: 5 points.
(f)The proposed program contains a component for alleviating overcrowding as defined in § 1944.656 of 7 CFR part 1944, subpart N: 5 points. In the event more than one preapplication receives the same amount of points, those preapplications will then be ranked based on the actual percentage figure used for determining the points. Further, in the event that preapplications are still tied, then those preapplications still tied will be ranked based on the percentage for HPG fund use (low to high). Further, for applications where assistance to rental properties or cooperatives is proposed, those still tied will be further ranked based on the number of years the units are available for occupancy under the program (a minimum of 5 years is required). For this part, ranking will be based from most to least number of years. Finally, if there is still a tie, then a lottery system will be used. VII. Non-Discrimination Statement USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at
(202)720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call
(800)795-3272 (voice),
(202)720-6382 (TDD). “USDA is an equal opportunity provider, employer, and lender.” Dated: February 8, 2008. Russell T. Davis, Administrator, Rural Housing Service. [FR Doc. 08-690 Filed 2-19-08; 8:45 am]
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84 references not yet in our index
  • 39 CFR 20
  • 39 CFR 111
  • Pub. L. 109-435
  • 120 Stat. 3198
  • 40 CFR 52
  • Pub. L. 104-4
  • 40 CFR 93
  • 40 CFR 51
  • 40 CFR 51.850
  • 40 CFR 51.853
  • 40 CFR 93.153
  • 40 CFR 51.852
  • 40 CFR 93.109(e)(2)(iii)
  • 40 CFR 93.101
  • 40 CFR 93.118(e)(4)
  • 40 CFR 180
  • 40 CFR 178
  • 40 CFR 2
  • Pub. L. 104-170
  • 40 CFR 180.960
  • 40 CFR 153.125
  • 40 CFR 723.250(b)
  • 40 CFR 723.250(d)
  • 40 CFR 723(b)
  • 40 CFR 723.250(d)(2)(ii)
  • 40 CFR 723.250(e)
  • 40 CFR 723.250
  • Pub. L. 104-113
  • 40 CFR 180.910
  • 40 CFR 152
  • 40 CFR 180.515
  • 40 CFR 180.571
  • 40 CFR 166
  • 40 CFR 180.276
  • 41 CFR 102
  • 41 CFR 118
  • 14 CFR 39
  • 14 CFR 73
  • 29 CFR 4010
  • Pub. L. 109-280
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SCOTUS322 U.S. 471
SCOTUS383 U.S. 519
SCOTUS534 U.S. 124
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