Unknown. Revised interim rule with request for comment
32,484 words·~148 min read·
/register/2008/04/03/08-1088A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
--- schema: federal-register doc_type: fedreg source_file: FR-2008-04-03.xml --- 73 65 Thursday, April 3, 2008 Contents Agency Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18283-18286 E8-6757 E8-6761 Agriculture Agriculture Department See Food Safety and Inspection Service Centers Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18286-18287 E8-6894 Meetings:
Disease, Disability, and Injury Prevention and Control Special Emphasis Panel— Division of HIV/AIDS Prevention Laboratory Branch Intramural Research Programs, 18287 E8-6885 Centers Centers for Medicare & Medicaid Services RULES Medicare Program: Modification to the Weighting Methodology Used to Calculate the Low-income Benchmark Amount, 18176-18182 08-1088 NOTICES Hearing: Reconsideration of Disapproval of Montana State Plan Amendment (07-004), 18287-18289 E8-6867 Coast Guard Coast Guard PROPOSED RULES Safety Zone:
Red Bull Air Race; San Diego Bay, San Diego, CA, 18222-18224 E8-6892 Safety Zones: Annual Events requiring safety zones in the Captain of the Port Buffalo Zone, 18225-18229 E8-6896 NOTICES Meetings: National Boating Safety Advisory Council, 18295 E8-6877 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Defense Defense Department See Navy Department Employee Employee Benefits Security Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 18301-18302 E8-6767 Employment Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18302-18303 E8-6890 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18263-18264 E8-6905 E8-6906 EPA Environmental Protection Agency RULES Delegation of National Emission Standards for Hazardous Air Pollutants for Source Categories;
NV, 18169-18172 E8-6919 Delegation of New Source Performance Standards: National Emission Standards for Hazardous Air Pollutants for the States of Arizona and Nevada, 18162-18169 E8-6915 Delegation of Partial Administrative Authority for Implementation of Federal Implementation Plan: Quinault Indian Nation, 18161-18162 E8-6669 Final Authorization of State Hazardous Waste Management Program Revision; Virginia, 18172-18176 E8-6724 PROPOSED RULES Authorization of State Hazardous Waste Management Program Revisions:
Virginia, 18229-18230 E8-6675 Delegation of National Emission Standards for Hazardous Air Pollutants, NV, 18229 E8-6920 National Emission Standards for Hazardous Air Pollutants: Area Source Standards for Nine Metal Fabrication and Finishing Source Categories, 18334-18381 E8-6411 NOTICES Meetings: Mobile Sources Technical Review Subcommittee, 18271 E8-6916 Proposed Determination to Prohibit, Restrict, or Deny Specification, or Use for Specification, of Area as a Disposal Site:
Yazoo River Basin, Issaquena County, MS; Correction, 18332 Z8-5401 Executive Executive Office of the President See Presidential Documents Federal Accounting Federal Accounting Standards Advisory Board NOTICES Concepts Statement Exposure Draft, etc., 18271-18272 E8-6809 FAA Federal Aviation Administration RULES Class E Airspace: Kobuk, AK, 18151-18152 E8-6931 Standard Instrument Approach Procedures, etc., 18152-18154 E8-6602 PROPOSED RULES Airworthiness Directives: Rolls-Royce Deutschland Ltd & Co KG
(RRD)BR700-715A1-30, etc., 18220-18222 E8-6866 Proposed Revocation of Area Navigation Jet Routes J-888R and J-996R; Alaska, 18222 E8-6935 FCC Federal Communications Commission PROPOSED RULES Radio Broadcasting Services: Evart, Ludington, Pentwater, and Manistee, Michigan, 18252-18253 E8-6658 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18272-18276 E8-6663 E8-6937 E8-6938 E8-6940 Closed Auction of Licenses for Cellular Unserved Service Areas, 18276-18278 E8-6956 Federal Emergency Federal Emergency Management Agency RULES Final Flood Elevation Determinations, 18189-18215 E8-6909 E8-6911 National Flood Insurance Program; Assistance to Private Sector Property Insurers; Write-Your-Own Arrangement, 18182-18188 E8-6898 Suspension of Community Eligibility, 18188-18189 E8-6908 PROPOSED RULES Proposed Flood Elevation Determinations, 18230-18252 E8-6910 E8-6912 E8-6913 Federal Energy Federal Energy Regulatory Commission NOTICES Application: Northern Natural Gas Co., 18264-18265 E8-6864 Transcontinental Gas Pipe Line Corp., 18265-18266 E8-6859 Filing: Cedar Creek Wind Energy, LLC, 18266 E8-6860 GEN-SYS Energy, 18266 E8-6858 Issuance Of Order: Plum Point Energy Associates, LLC, 18266-18267 E8-6862 Wells Fargo Energy Markets, LLC, 18267 E8-6861 Order on Technical Conference, 18267-18270 E8-6606 TransCanada Maine Wind Development Inc.: Notice Of Filing, 18270-18271 E8-6863 FMC Federal Maritime Commission NOTICES Request for Additional Information; Los Angeles/Long Beach Port Terminal Operator Administration and Implementation Agreement, 18278 E8-6835 Federal Reserve Federal Reserve System NOTICES Change in Bank Control Notices; Acquisition of Shares of Bank or Bank Holding Companies, 18278 E8-6926 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 18278-18279 E8-6925 Proposals to Engage in Permissible Nonbanking Activities or to Acquire Companies that are Engaged in Permissible Nonbanking Activities; Correction, 18279 E8-6924 FTC Federal Trade Commission NOTICES Analysis of Proposed Consent Order to Aid Public Comment: Reed Elsevier Inc. and Seisint, Inc., 18279-18281 E8-6952 The TJX Companies, Inc., 18281-18283 E8-6950 Food Food Safety and Inspection Service NOTICES Meetings: Shiga Toxin-Producing E. coli, 18257-18258 E8-6868 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See National Institutes of Health Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency See U.S. Customs and Border Protection NOTICES Designation of an Enhanced Driver's License and Identity Document Issued by the State of Washington as a Travel Document under the Western Hemisphere Travel, 18421-18422 E8-6819 Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended; Hildalgo waiver, 18293-18294 08-1095 08-1096 Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18297 E8-6930 Indian Indian Affairs Bureau NOTICES Indian Gaming: Approved Tribal - State Gaming Amendment, 18297 E8-6884 Land Acquisitions; Skokomish Indian Tribe, Washington, 18297-18298 E8-6878 Interior Interior Department See Indian Affairs Bureau See Land Management Bureau IRS Internal Revenue Service RULES Guidance Under Section 1502; Amendment of Matching Rule for Certain Gains on Member Stock; Correction, 18159-18160 E8-6879 E8-6883 International International Trade Administration NOTICES Applications for Duty-Free Entry of Scientific Instruments, 18258-18259 E8-6947 E8-6949 Final Results of Antidumping Duty Changed Circumstances Review and Reinstatement of the Antidumping Duty Order: Polyethylene Terephthalate Film, Sheet, and Strip from the Republic of Korea, 18259-18260 E8-6951 International International Trade Commission NOTICES Certain Flash Memory Controllers, Drives, Memory Cards, and Media Players, etc: Commission Decision Not To Review An Initial Determination, 18300 E8-6869 Justice Justice Department NOTICES Consent Decree: Atlanta Gas Light Company, et al., 18301 E8-6854 Labor Labor Department See Employee Benefits Security Administration See Employment and Training Administration See Veterans Employment and Training Service Land Land Management Bureau NOTICES Intent to name a geographic location the Craig Thomas Little Mountain Special Management Area: Big Horn County, Wyoming, 18299-18300 E8-6936 Intent to prepare a Resource Management Plan: Four Rivers Field Office (Idaho), 18298-18299 E8-6901 Meetings: Northwest California Resource Advisory Council, 18300 E8-6888 Merit Merit Systems Protection Board RULES Streamlining Regulations, 18149-18151 E8-6934 National Archives National Archives and Records Administration RULES Locations and Hours; Changes in NARA Research Room Hours, 18160-18161 E8-6984 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18320-18321 E8-6856 NIH National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 18289-18290 E8-6857 Government-Owned Inventions; Availability for Licensing, 18290-18291 E8-6893 Meetings: AIDS Research Advisory Committee, 18291 E8-6711 Center for Scientific Review Emphasis Panel, 18292 E8-6713 National Heart, Lung, and Blood Institute Special Emphasis Panel, 18292-18293 E8-6702 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Pacific Cod by American Fisheries Act Catcher Processors Using Trawl Gear in the Bering Sea and Aleutian Islands Management Area, 18219 08-1089 Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; etc., 18215-18219 E8-6953 PROPOSED RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Atlantic Coast Red Drum Fishery off the Atlantic States; Transfer of Management Authority, 18253-18256 E8-6955 NOTICES Atlantic Coastal Fisheries Cooperative Management Act Provisions: Tautog Fishery, 18260-18261 08-1090 Meetings: Fisheries of the South Atlantic; South Atlantic Fishery Management Council, 18261 E8-6882 North Pacific Fishery Management Council, 18261-18262 E8-6880 E8-6881 Navy Navy Department NOTICES Availability for Final Environmental Impact Statement: Activities to Implement 2005 Base Realignment and Closure Actions at National Naval Medical Center, Bethesda, MD, 18262-18263 E8-6891 Peace Peace Corps RULES Debt Collection, 18154-18159 E8-6917 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: Hazardous Materials; Transport of Lithium Batteries, 18321-18322 E8-6923 Presidential Presidential Documents PROCLAMATIONS *Special observances:* Cancer Control Month (Proc. 8229), 18423-18426 08-1098 National Child Abuse Prevention Month (Proc. 8230), 18427-18428 08-1099 National Donate Life Month (Proc. 8231), 18429-18430 08-1100 National Fair Housing Month (Proc. 8232), 18431-18432 08-1101 SEC Securities and Exchange Commission NOTICES Applications: Deregistration under Section 8(f) of the Investment Company Act, 18303-18304 E8-6873 Kohlberg Capital Corp., 18304-18306 E8-6876 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 18306-18307 E8-6872 Financial Industry Regulatory Authority, Inc., 18308-18310 E8-6870 Philadelphia Stock Exchange, Inc., 18310-18311 E8-6871 SBA Small Business Administration NOTICES Disaster Declarations: Arkansas, 18311-18312 E8-6944 Missouri, 18312 E8-6942 Meetings: National Small Business Development Center Advisory Board, 18312 E8-6886 Social Social Security Administration NOTICES Retirement Research Consortium Request for Applications, 18313-18320 E8-6948 State State Department RULES Documents Required for Travelers Departing From or Arriving in the United States at Sea and Land Ports-of-Entry from within the Western Hemisphere, 18384-18420 E8-6725 Surface Surface Transportation Board NOTICES Acquisition and Operation Exemption: Burlington Shortline Railroad, Inc., 18322 E8-6844 CSX Transportation, Inc.; Abandonment Exemption; Greenbrier and Fayette Counties, WV, 18322-18323 E8-6448 Petition for Exemption: Alaska Railroad Corp., 18323-18330 E8-6939 Transportation Transportation Department See Federal Aviation Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board Treasury Treasury Department See Internal Revenue Service NOTICES Proposed Renewal without Change; Comment Request; Imposition of Special Measures, 18331 E8-6889 Customs U.S. Customs and Border Protection RULES Documents Required for Travelers Departing From or Arriving in the United States at Sea and Land Ports-of-Entry from within the Western Hemisphere, 18384-18420 E8-6725 NOTICES Quarterly IRS Interest Rates Used in Calculating Interest on Overdue Accounts and Refunds on Customs Duties, 18295-18297 E8-6845 Veterans Veterans Employment and Training Service NOTICES Meetings: Advisory Committee on Veterans’ Employment, Training and Employer Outreach, 18303 E8-6754 Separate Parts In This Issue Part II Environmental Protection Agency, 18334-18381 E8-6411 Part III Homeland Security Department, 18421-18422 E8-6819 Part III Homeland Security Department, U.S. Customs and Border Protection; State Department, 18384-18420 E8-6725 Part IV Presidential Documents, 18423-18432 08-1098 08-1099 08-1100 08-1101 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 65 Thursday, April 3, 2008 Rules and Regulations MERIT SYSTEMS PROTECTION BOARD 5 CFR Part 1201 Streamlining Regulations AGENCY: Merit Systems Protection Board. ACTION: Revised interim rule with request for comment. SUMMARY: The Merit Systems Protection Board (“MSPB”) is issuing a revised interim rule amending several provisions of its practices and procedures regulations to improve the agency's service to its customers by facilitating the expeditious adjudication of appeals. This revised interim rule is intended to streamline MSPB case adjudication. It revises and adds to the regulatory changes undertaken in an interim rule issued by the MSPB on September 18, 2003. (68 FR 54651) This revised interim rule reflects the comments received from MSPB adjudicators and practitioners based on their experiences with the implementation of the current interim rule. The MSPB is soliciting comments concerning this revised interim rule, as well as additional comments concerning the September 18, 2003 interim rule. The MSPB will issue a final rule following the end of the comment period for this revised interim rule. All comments received during the comment period will be taken into consideration in drafting the final rule. DATES: *Effective date:* April 3, 2008. Submit written comments on or before June 2, 2008. ADDRESSES: Send comments to William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419;
(202)653-7200, phone;
(202)653-7130, fax; or e-mail: *mspb@mspb.gov.* FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419;
(202)653-7200, phone;
(202)653-7130, fax; or e-mail: *mspb@mspb.gov.* SUPPLEMENTARY INFORMATION: I. Background On September 18, 2003, the MSPB issued an interim rule amending several provisions of its practices and procedures regulations to improve the agency's service to its customers by facilitating the expeditious adjudication of appeals. These changes in the MSPB's rules of practice and procedure were, in part, a response to the directives contained in the President's Management Agenda (2002). The President's management reform initiative directs agencies to “reshape their organizations to meet a standard of excellence in attaining the outcomes important to the nation.” Among other actions, agencies are directed to reduce the time they take to make decisions. In addition, appellants and agencies had also expressed concern about the amount of time it took to adjudicate or otherwise process a case through the MSPB. As a result, the MSPB reviewed its practice and procedure regulations and determined that aspects of the regulations could be modified to improve its efficiency and effectiveness while maintaining the rights of the parties to a fair and impartial adjudication of appeals before the MSPB. II. Changes Contained in the September 18, 2003 Interim Rule The September 18, 2003 interim rule amended 5 CFR 1201.28 to allow the judge to grant a joint or unilateral request for suspension of a case for only one 30-day period rather than two 30-day periods. Moreover, the amended regulation provided that such requests would only be granted for good cause shown at the discretion of the judge, rather than automatically. Finally, the amendment specified a 30-day limit on the amount of time the judge could grant for a unilateral request. The September 18, 2003 interim rule also added two new subsections to the MSPB's regulations governing discovery procedures. These subsections, 5 CFR 1201.72(d) and 1201.73(e), permitted the administrative judge to impose limits on the frequency or extent of the use of discovery methods and the number of discovery requests. The MSPB noted at that time that it had decided to follow the guidance of the Federal Rules of Civil Procedure (Fed. R. Civ. P.) in adopting these changes to its discovery procedures. The September 18, 2003 interim rule also amended 1201.73(d)(2) to reduce the number of days for filing subsequent discovery requests from 10 days to 7 days. III. Summary of Changes in This Revised Interim Rule This revised interim rule makes several changes to the MSPB's regulations as follows: 5 CFR 1201.28(g) is added to provide that the date on which a case returns to the adjudication process following a suspension is the 31st day after the suspension went into effect, but that if that date falls on a day when the MSPB is not open for business, such as a weekend or Federal holiday, then the first business day after that date is substituted. The MSPB's regulations were previously silent on this point and it is anticipated that this amendment will serve its and the parties' interests by assuring that deadlines restart and parties are held responsible for meeting processing requirements only on days that the MSPB is open to conduct official business. 5 CFR 1201.72(c) is clarified by adding the words “to parties” after “interrogatories” in response to a comment received from a practitioner suggesting that there may be some confusion about whether interrogatories may be served on nonparties. 5 CFR 1201.72(d) is clarified by moving the words “the discovery sought is” from the introduction to the beginning of paragraph
(1)of that section. 5 CFR 1201.73 is amended by adding a new section
(a)concerning initial disclosures required of the parties. This new provision, which is similar to Fed. R. Civ. P. Rule 26, requires the parties to make certain specific initial disclosures to each other within 10 days of the date of the Acknowledgment Order, so as to jump start the discovery process. 5 CFR 1201.73(e)(1) and 74(a) are amended to add an express requirement that the parties attempt to resolve a discovery dispute before filing a motion to compel with the MSPB. Parties often file a motion to compel discovery when interrogatories are only one day late or there is a minor disagreement over the scope of discovery, before they make any reasonable effort to discuss the issue with the opposing party. At a minimum, the MSPB believes that this amendment will cause the parties to narrow the discovery issues in dispute, saving time and effort. IV. Request for Additional Comment The MSPB received 8 comments from appellants' representatives and agency representatives in response to the September 18, 2003 interim rule. The MSPB is considering these comments and will respond to them when a final rule is issued. However, as agency and appellant representatives have now had a significant period of time operating under the amendments effected by the September 18, 2003 interim rule, the MSPB is interested in receiving additional comments based upon such actual experience prior to issuing a final rule. The MSPB also invites comments concerning other changes to its regulations discussed herein that could facilitate the expeditious adjudication of appeals without adversely affecting the rights of the parties. List of Subjects in 5 CFR Part 1201 Administrative practice and procedure, Civil rights, Government employees. Accordingly, the MSPB amends 5 CFR Part 1201 as follows: PART 1201—[AMENDED] 1. The authority citation for part 1201 continues to read as follows: Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted. 2. Add § 1201.28(g) as follows: § 1201.28 Case suspension procedures.
(g)*Termination after 30 days.* If the final day of the 30-day suspension period falls on a day on which the MSPB is closed for business, adjudication shall resume as of the first business day following the expiration of the 30-day period. 3. Revise § 1201.72 by revising paragraphs
(c)and
(d)to read as follows: § 1201.72 Explanation and scope of discovery. *(c) Methods.* Parties may use one or more of the methods provided under the Federal Rules of Civil Procedure. These methods include written interrogatories to parties, depositions, requests for production of documents or things for inspection or copying, and requests for admission. *(d) Limitations.* The judge may limit the frequency or extent of use of the discovery methods permitted by these regulations. Such limitations may be imposed if the judge finds that:
(1)The discovery sought is cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(2)The party seeking discovery has had sufficient opportunity by discovery in the action to obtain the information sought; or
(3)The burden or expense of the proposed discovery outweighs its likely b 5. Revise § 1201.73 to read as follows: § 1201.73 Initial disclosures and discovery procedures. *(a) Initial disclosures.* Except to the extent otherwise directed by order, each party must, without awaiting a discovery request and within 10 days following the date of the MSPB's acknowledgment order, provide the following information to the other party:
(1)The agency must provide:
(i)A copy of, or a description by category or location of all documents in the possession, custody, or control of the agency that the agency may use in support of its claims or defenses, and
(ii)The name and, if known, the address, telephone number, and e-mail address of each individual likely to have discoverable information that the agency may use in support of its claims or defenses, identifying the subjects of such information.
(2)The appellant must provide:
(i)A copy of, or a description by category or location of all documents in the possession, custody, or control of the appellant that the appellant may use in support of his or her claims or defenses, and
(ii)The name and, if known, the address, telephone number, and e-mail address of each individual likely to have discoverable information that the appellant may use in support of his or her claims or defenses, identifying the subjects of such information.
(3)Each party must make its initial disclosure based upon the information then reasonably available to the party. A party is not excused from making its disclosures because it has not fully completed its investigation of its case, because it challenges the sufficiency of the other party's disclosures, or because the other party has not made its disclosures.
(b)*Discovery from a party* . A party seeking discovery from another party must start the process by serving a request for discovery on the representative of the other party or the party if there is no representative. The request for discovery must state the time limit for responding, as prescribed in § 1201.73(f), and must specify the time and place of the taking of the deposition, if applicable. When a party directs a request for discovery to an officer or employee of a Federal agency that is a party, the agency must make the officer or employee available on official time to respond to the request, and must assist the officer or employee as necessary in providing relevant information that is available to the agency.
(c)*Discovery from a nonparty, including a nonparty Federal agency* . Parties should try to obtain voluntary discovery from nonparties whenever possible. A party seeking discovery from a nonparty Federal agency or employee must start the process by serving a request for discovery on the nonparty Federal agency or employee. A party may begin discovery from other nonparties by serving a request for discovery on the nonparty directly. If the party seeking the information does not make that request, or if it does so but fails to obtain voluntary cooperation, it may obtain discovery from a nonparty by filing a written motion with the judge, showing the relevance, scope, and materiality of the particular information sought. If the party seeks to take a deposition, it should state in the motion the date, time, and place of the proposed deposition. An authorized official of the MSPB will issue a ruling on the motion, and will serve the ruling on the moving party. That official also will provide that party with a subpoena, if approved, that is directed to the individual or entity from which discovery is sought. The subpoena will specify the manner in which the party may seek compliance with it, and it will specify the time limit for seeking compliance. The party seeking the information is responsible for serving any MSPB-approved discovery request and subpoena on the individual or entity, or for arranging for its service.
(d)*Responses to discovery requests* . A party, or a Federal agency that is not a party, must answer a discovery request within the time provided under paragraph (f)(2) of this section, either by furnishing to the requesting party the information or testimony requested or agreeing to make deponents available to testify within a reasonable time, or by stating an objection to the particular request and the reasons for the objection. Parties and non-parties may respond to discovery requests by electronic mail if authorized by the requesting party.
(e)*Motions to compel discovery* .
(1)If a party fails or refuses to respond in full to a discovery request, or if a nonparty fails or refuses to respond in full to a MSPB-approved discovery order, the requesting party may file a motion to compel discovery. The requesting party must file the motion with the judge, and must serve a copy of the motion on the other party and on any nonparty entity or person from whom the discovery was sought. Before filing any motion to compel discovery, the moving party shall discuss the anticipated motion with the opposing party either in person or by telephone and the parties shall make a good faith effort to resolve the discovery dispute and narrow the areas of disagreement. The motion shall include:
(i)A copy of the original request and a statement showing that the information sought is relevant and material; and
(ii)A copy of the response to the request (including the objections to discovery) or, where appropriate, a statement that no response has been received, along with an affidavit or sworn statement under 28 U.S.C. 1746 supporting the statement (See appendix IV to part 1201.); and
(iii)A statement that the parties have discussed the anticipated motion and have made a good faith effort to resolve the discovery dispute and narrow the areas of disagreement.
(2)The other party and any other entity or person from whom discovery was sought may respond to the motion to compel discovery within the time limits stated in paragraph (f)(4) of this section.
(f)*Time limits* .
(1)Parties who wish to make discovery requests or motions must serve their initial requests or motions within 25 days after the date on which the judge issues an order to the respondent agency to produce the agency file and response.
(2)A party or nonparty must file a response to a discovery request promptly, but not later than 20 days after the date of service of the request or order of the judge. Any discovery requests following the initial request must be served within 10 days of the date of service of the prior response, unless the parties are otherwise directed. Deposition witnesses must give their testimony at the time and place stated in the request for deposition or in the subpoena, unless the parties agree on another time or place.
(3)Any motion to depose a nonparty (along with a request for a subpoena) must be submitted to the judge within the time limits stated in paragraph (f)(1) of this section or as the judge otherwise directs.
(4)Any motion for an order to compel discovery must be filed with the judge within 10 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired. Any pleading in opposition to a motion to compel discovery must be filed with the judge within 10 days of the date of service of the motion.
(5)Discovery must be completed within the time the judge designates.
(g)*Limits on the number of discovery requests* .
(1)Absent prior approval by the judge, interrogatories served by parties upon another party or a nonparty may not exceed 25 in number, including all discrete subparts.
(2)Absent prior approval by the judge or agreement by the parties, each party may not take more than 10 depositions.
(3)Requests to exceed the limitations set forth in paragraphs (g)(1) and (g)(2) of this section may be granted at the discretion of the judge. In considering such requests, the judge shall consider the factors identified in § 1201.72(d) of this part. 6. Revise § 1201.74(a) to read as follows: § 1201.74 Orders for discovery
(a)Motion for an order compelling discovery. Motions for orders compelling discovery and motions for the appearance of nonparties must be filed with the judge in accordance with § 1201.73(e)(1) and (f)(4). An administrative judge may deny a motion to compel discovery if a party fails to comply with the requirements of 5 CFR § 1201.73(e)(1) and (f)(4). William D. Spencer, Clerk of the Board. [FR Doc. E8-6934 Filed 4-2-08; 8:45 am] BILLING CODE 7400-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2007-0341; Airspace Docket No. 07-AAL-19] Establishment of Class E Airspace; Kobuk, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final Rule. SUMMARY: This action establishes Class E airspace at Kobuk, AK to provide adequate controlled airspace to contain aircraft executing Standard Instrument Approach Procedures (SIAPs). Two new SIAPs and a textual departure procedure
(DP)are being developed for the Kobuk Airport. This action establishes existing Class E airspace upward from 700 feet (ft.) and 1,200 ft. above the surface at Kobuk Airport, Kobuk, AK. DATES: *Effective Date:* 0901 UTC, June 5, 2008. The Director of the **Federal Register** approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number
(907)271-5898; fax:
(907)271-2850; e-mail: *gary.ctr.rolf@faa.gov* . Internet address: *http://www.alaska.faa.gov/at* . SUPPLEMENTARY INFORMATION: History On Friday, February 1, 2008, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. above the surface and from 1,200 ft. above the surface at Kobuk, AK (73 FR 6056). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing SIAPs for the Kobuk Airport. Class E controlled airspace extending upward from 700 ft. above the surface and from 1,200 ft. above the surface in the Kobuk Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments were received. The rule is adopted as proposed. The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9R, *Airspace Designations and Reporting Points,* signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order. The Rule This amendment to 14 CFR part 71 establishes Class E airspace at the Kobuk Airport, Alaska. This Class E airspace is established to accommodate aircraft executing new DP and SIAPs, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rules
(IFR)operations at the Kobuk Airport, Kobuk, Alaska. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under 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 rule 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 1, 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 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Kobuk Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 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. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9R, *Airspace Designations and Reporting Points* , signed August 15, 2007, and effective September 15, 2007, is amended as follows: Paragraph 6005 Class E Airspace Extending Upward From 700 Feet or More Above the Surface of the Earth. AAL AK E5 Kobuk, AK [New] Kobuk, Kobuk Airport, AK (Lat. 66°54′44″ N., long. 156°53′50″ W.) That airspace extending upward from 700 feet above the surface within a 7.7-mile radius of the Kobuk Airport; and that airspace extending upward from 1,200 feet above the surface within a 73-mile radius of the Kobuk Airport. Issued in Anchorage, AK, on March 24, 2008. Anthony M. Wylie, Manager, Alaska Flight Services Information Area Group. [FR Doc. E8-6931 Filed 4-2-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION 14 CFR Part 97 [Docket No. 30601; Amdt. No. 3263] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final Rule. SUMMARY: This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective April 3, 2008. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Directory of the **Federal Register** as of April 3, 2008. ADDRESSES: Availability of matter incorporated by reference in the amendment is as follows: *For Examination* — 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. The National Archives and Records Administration (NARA). For Information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.* *Availability* —All SIAPs are available online free of charge. Visit *http://nfdc.faa.gov* to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from: 1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2.The FAA Regional Office of the region in which the affected airport is located. FOR FURTHER INFORMATION CONTACT: Harry J. Hodges, Flight Procedure Standards Branch (AFS-420)Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK. 73125) telephone:
(405)954-4164. SUPPLEMENTARY INFORMATION: This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs. The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days. Conclusion The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under DOT Regulatory Order 12866;
(2)is not a “significant rule” under 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR part 97: Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air). Issued in Washington, DC on March 21, 2008. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended] By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, ISMLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows: * * * Effective Upon Publication FDC date State City Airport FDC No. Subject 09/06/07 GA ATHENS ATHENS/BEN EPPS 7/5144 TAKE-OFF MINIMUMS AND (OBSTACLE) DEPARTURE PROCS AMDT 1. 01/28/07 MA WESTFIELD/SPRINGFIELD BARNES MUNI 8/2537 VOR OR TACAN RWY 2, AMDT 4A. 03/03/08 ID POCATELLO POCATELLO REGIONAL 8/6887 NOTAM PREVIOUSLY PUBLISHED IN TL 08-8 IS RESCINDED. 03/06/08 NY ALBANY ALBANY INTL 8/7360 ILS OR LOC RWY 1, AMDT 10. 03/06/08 TX LUBBOCK LUBBOCK PRESTON SMITH INTL 8/7580 ILS OR LOC RWY 26, AMDT 3A. 03/10/08 CO GREELEY GREELEY-WELD COUNTY 8/7780 NDB RWY 34, ORIG. 03/10/08 LA LAKE CHARLES LAKE CHARLES REGIONAL 8/7796 ILS RWY 15, AMDT 20. 03/10/08 AK ALLAKAKET ALLAKAKET 8/7800 RNAV
(GPS)RWY 23, ORIG. 03/10/08 AK ALLAKAKET ALLAKAKET 8/7801 RNAV
(GPS)RWY 5, ORIG. 03/10/08 AK KALTAG KALTAG 8/7818 RNAV
(GPS)RWY 3, ORIG. 03/10/08 AK KALTAG KALTAG 8/7820 RNAV
(GPS)RWY 21, ORIG. 03/10/08 NY NEW YORK JOHN F. KENNEDY INTL 8/7827 ILS RWY 22L, AMDT 24. 03/11/08 OH AKRON AKRON-CANTON REGIONAL 8/7924 ILS OR LOC RWY 19, AMDT 7A. 03/11/08 OH COLUMBUS PORT COLUMBUS INTL 8/7925 ILS OR LOC RWY 10R, AMDT 8A. 03/11/08 OH AKRON AKRON-CANTON REGIONAL 8/7926 ILS OR LOC RWY 1, AMDT 37A. 03/11/08 WY CHEYENNE CHEYENNE RGNL/JERRY OLSON FIELD 8/7938 RADAR-1, AMDT 1A. 03/13/08 IN ELKHART ELKHART MUNI 8/8186 ILS OR LOC RWY 27, AMDT 2. 03/13/08 IL SPRINGFIELD ABRAHAM LINCOLN CAPITAL 8/8187 ILS OR LOC RWY 4, AMDT 25B. 03/13/08 NE OMAHA EPPLEY AIRFIELD 8/8189 ILS OR LOC/DME RWY 14L, AMDT 1. 03/13/08 NE OMAHA EPPLEY AIRFIELD 8/8190 ILS OR LOC RWY 32L, AMDT 1. 03/13/08 OH CINCINNATI CINCINNATTI MUNI AIRPORT-LUNKEN FIELD 8/8191 ILS RWY 21L, AMDT 17. 03/13/08 SD RAPID CITY RAPID CITY REGIONAL 8/8192 ILS OR LOC RWY 32, AMDT 17C. 03/13/08 OH DAYTON JAMES M COX DAYTON INTL 8/8193 ILS OR LOC RWY 18, AMDT 9A. 03/13/08 OH DAYTON JAMES M COX DAYTON INTL 8/8194 ILS OR LOC RWY 24L, AMDT 8B. 03/13/08 OH DAYTON JAMES M COX DAYTON INTL 8/8195 ILS OR LOC RWY 24R, AMDT 7. 03/13/08 WI WAUKESHA WAUKESHA COUNTY 8/8196 ILS OR LOC RWY 10, AMDT 1. 03/13/08 WI MADISON DANE COUNTY REGIONAL-TRUAX FIELD 8/8197 ILS OR LOC/DME RWY 18, ORIG-A. 03/13/08 WI MADISON DANE COUNTY REGIONAL-TRUAX FIELD 8/8198 ILS OR LOC/DME RWY 36, ORIG-B. 03/13/08 WI MILWAUKEE GENERAL MITCHELL INTL 8/8199 ILS RWY 7R, AMDT 15. 03/13/08 WI MILWAUKEE GENERAL MITCHELL INTL 8/8200 ILS RWY 19R, AMDT 10. 03/13/08 MI MUSKEGON MUSKEGON COUNTY 8/8202 ILS RWY 32, AMDT 17. 03/13/08 MO COLUMBIA COLUMBIA REGIONAL 8/8203 ILS RWY 2, AMDT 13B. 03/13/08 MO KANSAS CITY KANSAS CITY INTL 8/8204 ILS RWY 27, AMDT 1. 03/13/08 WI OSHKOSH WITTMAN RGNL 8/8205 ILS OR LOC RWY 36, AMDT 6C. 03/13/08 OH FREMONT SANDUSKY COUNTY REGIONAL 8/8211 GPS RWY 6, ORIG-A. 03/13/08 OH FREMONT SANDUSKY COUNTY REGIONAL 8/8212 GPS RWY 24, ORIG-A. 03/13/08 MI KALAMAZOO KALAMAZOO/BATTLE CREEK INTL 8/8214 ILS OR LOC RWY 35, AMDT 22. 03/14/08 CA ONTARIO ONTARIO INTL 8/8493 ILS OR LOC RWY 8L, AMDT 8A. 03/17/08 CO DENVER DENVER INTL 8/8734 ILS OR LOC RWY 25, AMDT 2A. [FR Doc. E8-6602 Filed 4-2-08; 8:45 am] BILLING CODE 4910-13-P PEACE CORPS 22 CFR Part 309 RIN 0420-AA22 Debt Collection AGENCY: Peace Corps. ACTION: Final Rule. SUMMARY: The Peace Corps has revised its rules regarding debt collection. This final rule clarifies and simplifies Peace Corps' debt collection procedures and practices. It eliminates the tax refund offset provisions of the previous regulation, and consolidates the administrative and tax refund offset provisions into one section. DATES: *Effective Date:* This final rule is effective May 5, 2008. FOR FURTHER INFORMATION CONTACT: Suzanne B. Glasow, Associate General Counsel, Office of the General Counsel, 202-692-2157. SUPPLEMENTARY INFORMATION: The Peace Corps published a proposed rule on February 22, 2008 (Volume 73, Number 36) for public review and comment. The Peace Corps did not receive any public comments and the Agency has not made any further revisions. Therefore, this rule is final and will be effective on the date stated above. Section-by-Section Analysis Subpart A—General Provisions The subpart announces the general purpose and scope of the regulation, provides definitions and terms used in this regulation, and this regulation's interaction with other regulations and procedures. Charges for interest, penalties and administrative expenses are addressed. Procedures for installment payments are provided. Authority to carry out the necessary duties for debt collection is delegated to the Chief Financial Officer. Subpart B—Collection Actions The subpart provides for aggressive collection efforts by the Peace Corps, and the timely turnover of past due collections to the Department of the Treasury. Procedures for written demand of payment and debtor review of the debt are provided. Methods of debt collection are listed. Subpart C—Salary Offset The subpart provides for salary offset collection procedures. Coordination of salary offset of another Federal Agency is addressed. Notice requirements prior to salary offset are listed. Outside hearings prior to salary offset is addressed. Executive Order 12866 This regulation has been determined to be non-significant within the meaning of Executive Order 12866. Regulatory Flexibility Act The Peace Corps Director, in accordance with the Regulatory Flexibility Act, (5 U.S.C. 605) has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation pertains to the administrative collection of individual debts owed to the Peace Corps, and does not affect acquisition, inter-Agency, or foreign claims. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. List of Subjects in 22 CFR Part 309 Claims. For the reasons stated in the preamble, Peace Corps has revised 22 CFR Part 309, as set forth below. PART 309—DEBT COLLECTION Subpart A—General Provisions Sec. 309.1 General purpose. 309.2 Scope. 309.3 Definitions. 309.4 Other procedures or actions. 309.5 Interest, penalties, and administrative costs. 309.6 Collection in installments. 309.7 Designation. Subpart B—Collection Actions 309.8 Application. 309.9 Notice—written demand for payment. 309.10 Review requirements. 309.11 Collection. Subpart C—Salary Offset 309.12 Purpose. 309.13 Scope. 309.14 Coordinating offset with another Federal agency. 309.15 Notice requirements before offset. 309.16 Review. 309.17 Procedures for salary offset. 309.18 Voluntary repayment agreements as an alternative to salary offset. 309.19 Waiver. 309.20 Compromise. 309.21 Suspension of collection. 309.22 Termination of collection. 309.23 Discharge. 309.24 Bankruptcy. Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 22 U.S.C. 2503(b); 31 U.S.C. 3720A; 31 CFR part 285; 5 CFR 550, subpart K. Subpart A—General Provisions § 309.1 General purpose. This part prescribes the procedures to be used by the United States Peace Corps (Peace Corps) in the collection and/or disposal of non-tax debts owed to Peace Corps and to the United States. § 309.2 Scope.
(a)Applicability of Federal Claims Collection Standards (FCCS). Peace Corps hereby adopts the provisions of the Federal Claims Collections Standards (31 CFR parts 900-904) and, except as set forth in this part or otherwise provided by law, Peace Corps will conduct administrative actions to collect claims (including offset, compromise, suspension, termination, disclosure and referral) in accordance with the FCCS.
(b)This part is not applicable to:
(1)Peace Corps claims against another Federal agency, any foreign country or any political subdivision thereof, or any public international organization.
(2)Debts arising out of acquisitions contracts subject to the Federal Acquisition Regulation
(FAR)shall be determined, collected, compromised, terminated, or settled in accordance with those regulations (see 49 CFR part 32).
(3)Claims where the Peace Corps Director (or designee) determines that the achievement of the purposes of the Peace Corps Act, as amended, 22 U.S.C. 2501 *et seq.* , or any other provision of law administered by the Peace Corps require a different course of action. § 309.3 Definitions. As used in this part (except where the context clearly indicates, or where the term is otherwise defined elsewhere in this part) the following definitions shall apply:
(a)*Administrative offset* means withholding funds payable by the United States to, or held by the United States for, a person to satisfy a debt owed by the person to the United States.
(b)*Administrative wage garnishment* means the process by which a Federal agency orders a non-Federal employer to withhold amounts from an employee's wages to satisfy a debt the employee owes to the United States.
(c)*Compromise* means that the creditor agency accepts less than the full amount of an outstanding debt in full satisfaction of the entire amount of the debt.
(d)*Debt* or *claim* means an amount of money which has been determined by an appropriate agency official to be owed to the United States from any person. As used in this part, the terms debt and claim are synonymous.
(e)*Debtor* means a person who owes the Federal Government money.
(f)*Delinquent debt* means any debt, which has not been paid by the date specified in an agency's initial written notification or in an applicable agreement, unless other satisfactory payment arrangements have been made.
(g)*Discharge* means the release of a debtor from personal liability for a debt. Further collection action is prohibited.
(h)*Disposable pay* has the same meaning as that term is defined in 5 CFR § 550.1103.
(i)Employee means a current employee of the Peace Corps or other Federal agency, including a member of the Armed Forces or Reserve of the Armed Forces of the United States.
(j)*FCCS* means the Federal Claims Collection Standards jointly published by the Department of the Treasury and the Department of Justice at 31 CFR parts 900-904.
(k)*Person* means an individual, corporation, partnership, association, organization, State or local government, or any other type of entity other than a Federal agency, foreign government, or public international organization.
(l)*Salary offset* means the withholding of amounts from the current pay account of a Federal employee to satisfy a debt owed by that employee to the United States.
(m)*Suspension* means the temporary cessation of an active debt collection pending the occurrence of an anticipated event.
(n)*Termination* means the cessation of all active debt collection action for the foreseeable future.
(o)*Waiver* means the decision to forgo collection of a debt owed to the United States as permitted or required by law. § 309.4 Other procedures or actions.
(a)Nothing contained in this regulation is intended to require Peace Corps to duplicate administrative proceedings required by contract or other laws or regulations.
(b)Nothing in this regulation is intended to preclude utilization of informal administrative actions or remedies which may be available.
(c)Nothing contained in this regulation is intended to deter Peace Corps from demanding the return of specific property or from demanding the return of the property or the payment of its value.
(d)The failure of Peace Corps to comply with any provision in this regulation shall not serve as a defense to the debt. § 309.5 Interest, penalties, and administrative costs.
(a)Except as otherwise provided by statute, contract or excluded in accordance with FCCS, Peace Corps will assess:
(1)Interest on unpaid debts in accordance with 31 CFR 901.9.
(2)Penalty charges at a rate of 6 percent a year or such other rate as authorized by law on any portion of a claim that is delinquent for more than 90 days.
(3)Administrative charges to cover the costs of processing and handling delinquent debts.
(4)Late payment charges that shall be computed from the date of mailing or hand delivery of the notice of the claim and interest requirements.
(b)When a debt is paid in partial or installment payments, amounts received shall be applied first to outstanding penalty and administrative cost charges, second to accrued interest, and then to outstanding principal.
(c)Waiver. Peace Corps will consider waiver of interest, penalties and/or administrative costs in accordance with the FCCS, 31 CFR 901.9(g). § 309.6 Collection in installments. Whenever feasible, and except as required otherwise by law, debts owed to the United States, together with interest, penalties, and administrative costs as required by this regulation, should be collected in one lump sum. This is true whether the debt is being collected under administrative offset, including salary offset, or by another method, including voluntary payment. However, if the debtor is financially unable to pay the indebtedness in one lump sum, payment may be accepted in regular installments. If Peace Corps agrees to accept payment in installments, it may require a legally enforceable written agreement from the debtor that specifies all of the terms of the arrangement and which contains a provision accelerating the debt in the event the debtor defaults. The size and frequency of the payments should bear a reasonable relation to the size of the debt and ability of the debtor to pay. If possible, the installment payments should be sufficient in size and frequency to liquidate the Government's claim within three years. § 309.7 Designation. The Chief Financial Officer is delegated authority and designated to perform all the duties for which the Director is responsible under the forgoing statutes and joint regulations. Subpart B—Collection Actions § 309.8 Application.
(a)Peace Corps shall aggressively collect claims and debts in accordance with these regulations and applicable law.
(b)Peace Corps will transfer to the Department of the Treasury, Financial Management Service
(FMS)any past due, legally enforceable non-tax debt that has been delinquent for 180 days or more so that FMS may take appropriate action to collect the debt or take other appropriate action in accordance with applicable law and regulation.
(c)Peace Corps may transfer any past due, legally enforceable debt that has been delinquent for fewer than 180 days to FMS for collection in accordance with applicable law and regulation. (See 31 CFR part 285.) § 309.9 Notice—written demand for payment.
(a)Upon determination that a debt is owed to Peace Corps or the United States, Peace Corps shall promptly hand deliver or send by first-class mail (to the debtor's most current address in the records of Peace Corps) at least one written notice (e.g. Bill of Collection or demand letter) informing the debtor of the consequences of failing to pay or otherwise resolve a Peace Corps debt, subject to paragraph
(c)of this section. Written demand under this subpart may be preceded by other appropriate actions under this part and or the FCCS, including but not limited to actions taken under the procedures applicable to administrative offset, including salary offset.
(b)The written notice shall inform the debtor of:
(1)The nature and amount of the debt, and the facts giving rise to the debt;
(2)The date by which payment should be made to avoid the imposition of interest, penalties, and administrative costs, and the enforced collection actions described in § 309.5 of this part;
(3)The applicable standards for imposing interest, penalties and administrative costs to delinquent debts;
(4)Peace Corps' willingness to discuss alternative payment arrangements and how the debtor may enter into a written agreement to repay the debt under terms acceptable to Peace Corps;
(5)The name, address, and telephone number of a contact person or office within Peace Corps;
(6)Peace Corps' intention to enforce collection if the debtor fails to pay or otherwise resolve the debt, by taking one or more of the following actions:
(i)Offset from Federal payments otherwise due to the debtor, including income tax refunds, salary, certain benefit payments, retirement, vendor payments, travel reimbursement and advances, and other Federal payments;
(ii)Referral to private collection agency;
(iii)Report to credit bureaus;
(iv)Administrative wage garnishment;
(v)Referral to Department of Justice for litigation action;
(vi)Referral to Financial Management Service of the Department of the Treasury for collection;
(vii)Other actions as permitted by the FCCS and applicable law.
(7)How the debtor may inspect and copy records related to the debt;
(8)The debtor's opportunity for an internal review of Peace Corps' determination that the debtor owes a debt or the amount of the debt;
(9)The debtor's right, if any, to request waiver of collection of certain debts, as applicable;
(10)Requirement that the debtor advise Peace Corps of any bankruptcy proceeding of the debtor.
(c)Peace Corps may omit from a notice to a debtor one or more of the provisions contained in paragraphs
(6)through
(10)of this section if Peace Corps determines that any provision is not legally required given the collection remedies to be applied to a particular debt, or which have already been provided by prior notice, applicable agreement, or contract. § 309.10 Review requirements.
(a)For purposes of this section, whenever Peace Corps is required to afford a debtor a review within the agency, Peace Corps shall provide the debtor with an opportunity for an internal review of the existence or the amount of the debt. For offset of current Federal salary under 5 U.S.C. 5514 for certain debts, debtors may also request an outside hearing. (See subpart C of this part)
(b)Any request for a review must be in writing to the contact office by the payment due date stated in the initial notice sent under § 309.9(b) or other applicable provision. The debtor's request shall state the basis for the dispute and include any relevant documentation in support.
(1)Peace Corps will provide for an internal review of the debt by an appropriate agency official. The review may include examination of documents, internal discussions with relevant officials and discussion by letter or orally with the debtor, at Peace Corps' discretion.
(2)An oral hearing is not required when, in Peace Corps' determination, the matter can be decided on the documentary record. Peace Corps will provide a “paper hearing”, that is, a determination based upon a review of the written record unless Peace Corps makes a determination that a debt involves issues of credibility or veracity, at which point an oral hearing may be required. Unless otherwise required by law, such oral hearing shall not be a formal evidentiary hearing. § 309.11 Collection. Upon final determination of the existence and amount of a debt, unless other acceptable payment arrangement have been made or procedures under a specific statute apply, Peace Corps shall collect the debt by one or more of the methods described in § 309.9(b)
(6)(i-vii) or as otherwise authorized by law and regulation.
(a)Administrative offset—(1) Payments otherwise due the debtor from the United States shall be offset from the debt in accordance with 31 CFR 901.3. These may be funds under the control of Peace Corps or other Federal agencies. Collection may be through centralized offset by the Financial Management Service
(FMS)of the Department of the Treasury.
(2)Such payments include but are not limited to vendor payments, salary, retirement, lump sum payments due upon Federal employment separation, travel reimbursements, tax refunds, loans or other assistance. Offset of Federal salary payments will be in accordance with 5 U.S.C. 5514.
(3)Before administrative offset is instituted by another Federal agency or the FMS, Peace Corps shall certify in writing to that entity that the debt is past due and legally enforceable and that Peace Corps has complied with all applicable due process and other requirements as described in this part and other Federal law and regulations.
(b)Any other method authorized by law or regulation. Subpart C—Salary Offset § 309.12 Purpose. This subpart provides Peace Corps' policies and procedures for the collection by salary offset of a Federal employee's pay to satisfy certain past due debts owed the United States Government. § 309.13 Scope.
(a)The provisions of this section apply to collection by salary offset under 5 U.S.C. 5514 of debts owed to Peace Corps and debts owed to other Federal agencies by Peace Corps' employees. Peace Corps will make reasonable and lawful efforts to administratively collect amounts owed by employees prior to initiating salary offset action. This section does not apply to debts where collection by salary offset is explicitly provided for or prohibited by another statute ( *e.g.* travel advances).
(b)References. The following statutes and regulations apply to Peace Corps' recovery of debts due the United States by salary offset:
(1)5 U.S.C. 5514, as amended, governing the installment collection of debts;
(2)31 U.S.C. 3716, governing the liquidation of debts by administrative offset;
(3)5 CFR part 550, subpart K, setting forth the minimum requirements for executive agency regulations on salary offset; and
(4)31 CFR parts 900 through 904, the Federal Claims Collections Standards.
(c)Nothing in this subpart precludes the compromise, suspension, or termination of collection actions where appropriate under the standards implementing the Federal Claims Collection Standards. § 309.14 Coordinating offset with another Federal agency.
(a)When Peace Corps is owed a debt by an employee of another agency, the other agency shall not initiate the requested offset until Peace Corps provides the agency with a written certification that the debtor owes Peace Corps a debt (including the amount and basis of the debt and the due date of payment) and that Peace Corps has complied with these regulations.
(b)When another agency is owed the debt, Peace Corps may use salary offset against one of its employees who is indebted to another agency, if requested to do so by that agency. Such request must be accompanied by a certification that the person owes the debt (including the amount and basis of the debt and the due date of payment) and that the agency has complied with its regulations as required by 5 U.S.C. 5514 and 5 CFR part 550, subpart K. § 309.15 Notice requirements before offset.
(a)Deductions under the authority of 5 U.S.C. 5514 shall not be made unless the creditor agency first provides the employee with written notice that he/she owes a debt to the Federal Government at least 30 calendar days before salary offset is to be initiated. When Peace Corps is the creditor agency this notice of intent to offset an employee's salary shall be hand-delivered or sent by certified mail to the most current address that is available. The written notice will state:
(1)That Peace Corps has reviewed the records relating to the claim and has determined that a debt is owed, its origin and nature, and the amount of the debt;
(2)The intention of Peace Corps to collect the debt by means of deduction from the employee's current disposable pay account until the debt and all accumulated interest is paid in full;
(3)The amount, frequency, approximate beginning date, and duration of the intended deductions;
(4)An explanation of the Peace Corps' policy concerning interest, penalties and administrative costs, including a statement that such assessments must be made unless excused in accordance with the FCCS (See § 309.5);
(5)The employee's right to inspect and copy all records of the Peace Corps pertaining to the debt claimed or to receive copies of such records if personal inspection is impractical;
(6)The right to a hearing conducted by a hearing official (an administrative law judge, or alternatively, an individual not under the supervision or control of the Peace Corps) with respect to the existence and amount of the debt claimed, or the repayment schedule, so long as a petition is filed by the employee as prescribed;
(7)If not previously provided, the opportunity (under terms agreeable to the Peace Corps) to establish a schedule for the voluntary repayment of the debt or to enter into a written agreement to establish a schedule for repayment of the debt in lieu of offset. The agreement must be in writing, signed by both the employee and the creditor agency, and documented in the creditor agency's files;
(8)The name, address and telephone number of an officer or employee of the Peace Corps who may be contacted concerning procedures for requesting a hearing;
(9)The method and time period for requesting a hearing;
(10)That the timely filing of a petition for a hearing as prescribed will stay the commencement of collection proceedings;
(11)The name and address of the office to which the petition should be sent;
(12)That the Peace Corps will initiate certification procedures to implement a salary offset, as appropriate, (which may not exceed 15 percent of the employee's disposable pay) not less than 30 calendar days from the date of delivery of the notice of debt, unless the employee files a timely petition for a hearing;
(13)That a final decision on the hearing (if one is requested) will be issued at the earliest practical date, but not later than 60 calendar days after the filing of the petition requesting the hearing, unless the employee requests and the hearing official grants a delay in the proceedings;
(14)That any knowingly false or frivolous statements, representations or evidence may subject the employee to:
(i)Disciplinary procedures appropriate under the Peace Corps Act or the Foreign Service Act, Peace Corps regulations, or any other applicable statutes or regulations;
(ii)Penalties under the False Claims Act, §§ 3729-3731 of title 31, United States Code, or any other applicable statutory authority; and
(iii)Criminal penalties under 18 U.S.C. sections 286, 287, 1001, and 1002 or any other applicable authority;
(15)Any other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made;
(16)That unless there are applicable contractual or statutory provisions to the contrary, amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee; and
(17)That proceedings with respect to such debt are governed by 5 U.S.C. 5514.
(b)Peace Corps is not required to provide prior notice to an employee when the following adjustments are made by Peace Corps to a Peace Corps employee's pay:
(1)Any adjustment to pay arising out of an employee's election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay if the amount to be recovered was accumulated over four pay periods or less;
(2)A routine adjustment of pay that is made to correct an overpayment of pay attributable to clerical or administrative errors or delays in processing pay documents, if the overpayment occurred within the four pay periods preceding the adjustment, and, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and point of contact for contesting the adjustment; or
(3)Any adjustment to collect a debt of $50 or less, if, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature of the amount of the adjustment and a point of contact for contesting the adjustment. § 309.16 Review.
(a)*Request for outside hearing.* Except as provided in paragraph
(b)of this section, an employee who desires an outside hearing concerning the existence or amount of the debt or the proposed offset schedule must send a request to the office designated in the notice of intent. See § 309.15(a) (8). The request must be received by the designated office not later than 20 calendar days after the date of delivery of the notice as provided in § 309.15(a). The request must be signed by the employee and should identify and explain with reasonable specificity and brevity the facts, evidence and witnesses which the employee believes support his or her position. If the employee objects to the percentage of disposable pay to be deducted from each check, the request should state the objection and the reasons for it. The employee must also specify whether an oral hearing or a review of the documentary evidence is requested. If an oral hearing is desired, the request should explain why the matter cannot be resolved by review of the documentary evidence alone.
(b)*Failure to submit timely.*
(1)If the employee files a petition for a review after the expiration of the 20 calendar day period provided for in paragraph
(a)of this section, the designated office may accept the request if the employee can show that the delay was the result of circumstances beyond his or her control, or because of a failure to receive the notice of the filing deadline (unless the employee has actual knowledge of the filing deadline).
(2)An employee waives the right to a review, and will have his or her disposable pay offset in accordance with Peace Corps' offset schedule, if the employee fails to file a request for a hearing unless such failure is excused as provided in paragraph
(1)of this section.
(3)If the employee fails to appear at an oral hearing of which he or she was notified, unless the hearing official determines failure to appear was due to circumstances beyond the employee's control, his or her appeal will be decided on the basis of the documents then available to the hearing official.
(c)*Representation at the hearing.* The creditor agency may be represented by a representative of its choice. The employee may represent himself or herself or may be represented by an individual of his or her choice and at his or her expense.
(d)*Review of Peace Corps records related to the debt.*
(1)An employee who intends to inspect or copy creditor agency records related to the debt in accordance with § 309.15(a) (5), must send a letter to the official designated in the notice of intent to offset stating his or her intention. The letter must be sent within 20 calendar days after receipt of the notice.
(2)In response to a timely request submitted by the debtor, the designated official will notify the employee of the location and time when the employee may inspect and copy records related to the debt.
(3)If personal inspection is impractical, copies of such records shall be sent to the employee.
(e)*Oral Hearing.*
(1)If an employee timely files a request for an oral hearing under § 309.16(a), the matter will be conducted by a hearing official not under the supervision or control of Peace Corps.
(2)Procedure.
(i)After the employee requests a hearing, the hearing official shall notify the employee of the form of the hearing to be provided. If the hearing will be oral, notice shall set forth the date, time and location of the hearing. If the hearing will be paper, the employee shall be notified that he or she should submit arguments in writing to the hearing official by a specified date after which the record shall be closed. This date shall give the employee reasonable time to submit documentation.
(ii)An employee who requests an oral hearing shall be provided an oral hearing if the hearing official determines that the matter cannot be resolved by review of documentary evidence alone ( *e.g.* when an issue of credibility or veracity is involved). The hearing is not an adversarial adjudication, and need not take the form of an evidentiary hearing.
(iii)If the hearing official determines that an oral hearing is not necessary, he or she will make a decision based upon a review of the available written record.
(iv)The hearing official must maintain a summary record of any hearing provided by this subpart. Witnesses who provide testimony will do so under oath or affirmation.
(3)Decision. The written decision shall include:
(i)A statement of the facts presented to support the origin, nature, and amount of the debt;
(ii)The hearing official's findings, analysis, and conclusions; and
(iii)The terms of any repayment schedules, or the date salary offset will commence, if applicable.
(4)Failure to appear. In the absence of good cause shown ( *e.g.* excused illness), an employee who fails to appear at a hearing shall be deemed, for the purpose of this subpart, to admit the existence and amount of the debt as described in the notice of intent. The hearing official shall schedule a new hearing upon the request of the creditor agency representative when good cause is shown.
(5)A hearing official's decision is considered to be an official certification regarding the existence and amount of the debt for purposes of executing salary offset under 5 U.S.C. 5514 only. It does not supersede the finding by Peace Corps that a debt is owed and does not affect the Government's ability to recoup the debt through alternative collection methods under other appropriate methods. § 309.17 Procedures for salary offset. Unless otherwise provided by statute or contract, the following procedures apply to salary offset:
(a)*Method.* Salary offset will be made by deduction at one or more officially established pay intervals from the current pay account of the employee without his or her consent.
(b)*Source.* The source of salary offset is current disposable pay.
(c)*Types of collection.*
(1)*Lump sum payment.* Ordinarily debts will be collected by salary offset in one lump sum if possible. However, if the amount of the debt exceeds 15 percent of disposable pay for an officially established pay interval, the collection by salary offset must be made in installment deductions.
(2)*Installment deductions.*
(i)The size of installment deductions must bear a reasonable relation to the size of the debt and the employee's ability to pay. If possible, the size of the deduction will be that necessary to liquidate the debt in no more than 1 year. However, the amount deducted for any period must not exceed 15 percent of the disposable pay from which the deduction is made, except as provided by other regulations or unless the employee has agreed in writing to greater amount.
(ii)Installment payments of less than $25 per pay period will be accepted only in the most unusual circumstances.
(iii)Installment deductions will be made over a period of not greater than the anticipated period of employment. § 309.18 Voluntary repayment agreements as an alternative to salary offset.
(a)In response to a notice of intent, an employee may propose a written agreement to repay the debt as an alternative to salary offset. Any employee who wishes to repay a debt without salary offset shall submit in writing a proposed agreement to repay the debt. The proposal shall admit the existence of the debt and set forth a proposed repayment schedule. Any proposal under this paragraph must be received by the official designated in that notice within 20 calendar days after receipt of the notice of intent.
(b)When the Peace Corps is the creditor agency, in response to a timely proposal by the debtor the agency will notify the employee whether the employee's proposed written agreement for repayment is acceptable. It is within the agency's discretion to accept a repayment agreement instead of proceeding by offset.
(c)If the Peace Corps decides that the proposed repayment agreement is unacceptable, the employee will have 15 calendar days from the date he or she received notice of the decision to file a petition for a review.
(d)If the Peace Corps decides that the proposed repayment agreement is acceptable, the alternative arrangement must be in writing and signed by both the employee and a designated agency official. § 309.19 Waiver.
(a)Under certain circumstances, employees may have a statutory right to request a waiver of indebtedness. When an employee makes a request under a statutory right, further collection will be stayed pending an administrative determination on the request.
(b)Waiver of indebtedness is an equitable remedy and as such must be based on an assessment of the facts involved in the individual case under consideration. The burden is on the employee to demonstrate that the applicable waiver standard has been met. § 309.20 Compromise. Peace Corps may attempt to effect compromise in accordance with the standards set forth in the FCCS (31 CFR part 902). § 309.21 Suspension of collection. Suspension of collection action shall be made in accordance with the standards set forth in the FCCS (31 CFR 903.1-903.2). § 309.22 Termination of collection. Termination of collection action shall be made in accordance with the standards set forth in the FCCS (31 CFR 903.1 and 903.3-903.4). § 309.23 Discharge. Once a debt has been closed out for accounting purposes and collection has been terminated, the debt is discharged. Peace Corps will report discharged debt as income to the debtor to the Internal Revenue Service per 26 U.S.C. 6050P and 26 CFR 1.6050P-1. § 309.24 Bankruptcy. Peace Corps generally terminates collection activity on debts that have been discharged in bankruptcy unless otherwise provided for by bankruptcy law. The CFO will seek legal advice by the General Counsel's office if there is the belief that any claims or offset may have survived the discharge of a debtor. Dated: March 31, 2008. Tyler S. Posey, General Counsel. [FR Doc. E8-6917 Filed 4-2-08; 8:45 am] BILLING CODE 6015-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9383] RIN 1545-BH21 Guidance Under Section 1502; Amendment of Matching Rule for Certain Gains on Member Stock; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final and temporary regulations; Correction. SUMMARY: This document contains a correction to final and temporary regulations (TD 9383) that were published in the **Federal Register** on Friday, March 7, 2008 (73 FR 12265). Concerning the treatment of certain intercompany gain with respect to consolidated group member stock. These amendments provide for the redetermination of an intercompany gain as excluded from gross income in certain member stock transactions. These regulations affect corporations filing consolidated returns. DATES: This correction is effective April 3, 2008. FOR FURTHER INFORMATION CONTACT: John F. Tarrant or Ross E. Poulsen,
(202)622-7790 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The final and temporary regulations that are the subject of this document are under section 1502 of the Internal Revenue Code. Need for Correction As published, final and temporary regulations (TD 9383) contain an error that may prove to be misleading and is in need of clarification. Correction of Publication Accordingly, the publication of the final and temporary regulations (TD 9383), which were the subject of FR Doc. E8-4573, is corrected as follows: On page 12266, column 1, in the preamble, under the paragraph heading “Background”, lines 3 through 5 from the bottom of the column, the language “extent “the Commissioner determines that treating S's intercompany item as excluded from gross income is consistent with the purposes of § 1.1502-13 and other provisions of the” is corrected to read “extent “[t]he Commissioner determines that treating S's intercompany item as excluded from gross income is consistent with the purposes of [§ 1.1502-13] and other provisions of the”. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E8-6879 Filed 4-2-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9383] RIN 1545-BH21 Guidance Under Section 1502; Amendment of Matching Rule for Certain Gains on Member Stock; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correcting amendment. SUMMARY: This document contains a correction to final and temporary regulations (TD 9383) that were published in the **Federal Register** on Friday, March 7, 2008 (73 FR 12265). Concerning the treatment of certain intercompany gain with respect to consolidated group member stock. These amendments provide for the redetermination of an intercompany gain as excluded from gross income in certain member stock transactions. These regulations affect corporations filing consolidated returns. DATES: This correction is effective April 3, 2008. FOR FURTHER INFORMATION CONTACT: John F. Tarrant or Ross E. Poulsen,
(202)622-7790 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The final and temporary regulations that are the subject of this document are under section 1502 of the Internal Revenue Code. Need for Correction As published, final and temporary regulations (TD 9383) contain an error that may prove to be misleading and is in need of clarification. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Correction of Publication Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2.** Section 1.1502-13T is amended by revising the introductory text of paragraph (c)(6)(ii)(C)(1) to read as follows: § 1.1502-13T Intercompany transactions (temporary).
(c)* * *
(6)* * *
(ii)* * *
(C)* * * ( *1* ) *In general.* Notwithstanding paragraph (c)(6)(ii)(A)( *1* ), intercompany gain with respect to member stock is redetermined to be excluded from gross income to the extent that— LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E8-6883 Filed 4-2-08; 8:45 am] BILLING CODE 4830-01-P NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 36 CFR Part 1253 RIN 3095-AB57 [Docket NARA-08-0001] Locations and Hours; Changes in NARA Research Room Hours AGENCY: National Archives and Records Administration (NARA). ACTION: Final rule; confirmation of interim rule. SUMMARY: NARA is revising its regulations to increase the number of hours its archival research rooms are open in the Washington, DC, area. In response to an interim final rule published on February 1, 2008, we received 53 comments, which are discussed in the SUPPLEMENTARY INFORMATION section of this preamble. This final rule document confirms without change to the rule the effective date of the regulation. DATES: *Effective Date:* The interim rule amending published on February 1, 2008 (73 FR 6030), is adopted as a final rule, effective April 14, 2008. FOR FURTHER INFORMATION CONTACT: Nancy Allard at 301-837-1477 or Jennifer Davis Heaps at 301-837-1801 or via fax number 301-837-0319. SUPPLEMENTARY INFORMATION: NARA published an interim final rule on February 1, 2008 (73 FR 6030) to restore extended evening and Saturday research room hours in its Washington, DC, area archival research rooms, effective April 14, 2008. The research rooms will be open from 9 a.m. to 5 p.m. on Monday, Tuesday, and Saturday. On Wednesday, Thursday, and Friday they will be open from 9 a.m. to 9 p.m. We received 53 comments on the interim final rule from individuals and representatives of organizations, all supportive of the increased hours. While one comment expressed disappointment with the choice of evenings because the extended hours overlap with the Library of Congress, a number of comments specifically endorsed having three consecutive evenings and Saturday to maximize the cost-effectiveness of research room use by out-of-town researchers. Seven comments requested that NARA provide additional “record pull times” for retrieving records from the stacks for use in the research rooms on Saturdays and, in one case, weekdays. As we noted in the interim final rule, we are restoring the late afternoon time for pulling records from the stacks on the three weekdays that we are open in the evening, but we have never had Saturday “pull” service. We recognize that this would be a useful service to researchers who only use the research rooms on Saturdays, but we are unable to adopt the suggestion. The FY 2008 appropriation that is permitting us to restore extended hours does not cover adding staff to provide this additional new service. As a result, the finding aids room is open but there is no archival consultation. It is these archival professionals who would be needed to ensure successful records pulls. Every records request slip submitted is checked for accurate pull information by an archivist or specialist. We also do not have the pull and refile manager or pull and refile technicians available on Saturdays. Regulatory Impact This rule is not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking. List of Subjects in 36 CFR Part 1253 Archives and records. PART 1253—LOCATION OF NARA FACILITIES AND HOURS OF USE Accordingly, the interim rule amending 36 CFR part 1253 which was published on February 1, 2008 (73 FR 6030), is adopted as a final rule without change. Dated: March 31, 2008. Allen Weinstein, Archivist of the United States. [FR Doc. E8-6984 Filed 4-2-08; 8:45 am] BILLING CODE 7515-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 49 [EPA-R10-OAR-2008-0130; FRL-8549-2] Announcement of the Delegation of Partial Administrative Authority for Implementation of Federal Implementation Plan for the Quinault Reservation to the Quinault Indian Nation AGENCY: Environmental Protection Agency (EPA). ACTION: Delegation of authority; technical amendment. SUMMARY: This action announces that on October 4, 2007, EPA Region 10, and the Quinault Indian Nation, entered into a Partial Delegation of Administrative Authority to carry out certain day-to-day activities associated with implementation of the Federal Implementation Plan for the Quinault Reservation (Quinault FIP). A note of this partial delegation is being added to the Quinault FIP. DATES: The technical amendment to 49 CFR 49.10590 is effective April 3, 2008. The partial delegation of administrative authority was effective October 4, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2008-0130. The delegation agreement and other docket materials are available electronically at EPA's electronic public docket and comment system, found at *www.regulations.gov* or in hard copy from Steve Body, Office of Air Waste and Toxics, AWT-107, EPA Region 10, Suite 900, 1200 Sixth Avenue, Seattle, WA 98101, or via e-mail at *body.steve@epa.gov* . Additional information may also be obtained from the Quinault Tribe by contacting Lisa Riener, Ouinault Indian Nation, 1214 Aslis St. Taholah, WA 98569 or via e-mail at *LRIENER@quinault.org* . 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 during normal business hours at the Office of Air, Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. FOR FURTHER INFORMATION CONTACT: Steve Body at telephone number
(206)553-0782, e-mail address: *body.steve@epa.gov* , or the EPA Region 10 address. SUPPLEMENTARY INFORMATION: The purpose of this action is to announce that on October 4, 2007, EPA Region 10, delegated partial administrative authority for implementation of certain provisions of the Quinault FIP to the Quinault Indian Nation. See 40 CFR part 49, subpart M, sections 10581 through 10590, as authorized by 40 CFR 49.122 of the Federal Air Rules for Reservations (FARR), 40 CFR part 49, subpart C. I. Authority to Delegate Federal regulation 40 CFR 49.122 provides EPA authority to delegate to Indian Tribes partial administrative authority to implement provisions of the Federal Air Rules for Reservations (FARR), 40 CFR part 49, subpart C. Tribes must submit a request to the Regional Administrator that meets the requirements of 40 CFR 49.122. II. Request for Delegation On July 25, 2006, the President of the Quinault Indian Nation submitted to the Regional Administrator a request for delegation of certain provision of the Quinault FIP. That request included all the information and demonstrations required by the FARR for delegation. A copy of all documentation is on file at EPA Region 10, Seattle, Washington (see ADDRESSES above). The Quinault Indian Nation requested delegation for the following provisions; 40 CFR 49.10590
(a)General provisions, 40 CFR 49.10586
(b)Rule for limiting visible emissions, 40 CFR 49.10586
(g)General rule for open burning, and 40 CFR 49.10586
(i)Rule for air pollution episodes. III. EPA Response to the Request for Delegation EPA and the Quinault Indian Nation signed the Delegation Agreement that specifies the provisions and authorities delegated. The Quinault Indian Nation is delegated the following provisions; 40 CFR 49.10590
(a)General provisions, 40 CFR 49.10586
(b)Rule for limiting visible emissions, 40 CFR 49.10586
(g)General rule for open burning, and 40 CFR 49.10586
(i)Rule for air pollution episodes. In addition, the agreement delegates to the Tribe authority to investigate complaints and assist EPA in inspections. The Agreement also includes terms and conditions applicable to the delegation. A copy of the Agreement is kept at EPA Region 10 at the address above. EPA solicited by letter, advice and insight from the State of Washington, Grays Harbor County, Jefferson County Olympic National Park, and the Olympic National Forest on the Quinault request for delegation. One comment supporting delegation was received. Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because EPA is merely informing the public of partial delegation of administrative authority to the Quinault Indian Nation and making a technical amendment to the Code of Federal Regulations
(CFR)by adding a note announcing the partial delegation. Thus, notice and public procedure are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B). Moreover, since today's action does not create any new regulatory requirements, EPA finds that good cause exists to provide for an immediate effective date pursuant to 5 U.S.C. 553(d)(3). IV. 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 makes a technical amendment and gives notice of a partial delegation of administrative authority. 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.* ). This rule 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, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” Under section 5(b) of Executive Order 13175, EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation. Under section 5(c) of Executive Order 13175, EPA may not issue a regulation that has tribal implications and that preempts tribal law, unless the Agency consults with tribal officials early in the process of developing the regulation. EPA has concluded that this rule may have tribal implications. EPA's action fulfills a requirement to publish a notice announcing partial delegation of administrative authority to the Quinault Indian Nation and noting the partial delegation in the CFR. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule. 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 technical amendment merely notes that partial delegation of administrative authority to the Quinault Indian Nation is in effect. 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. This action does not involve technical standards; 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 June 2, 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 49 Environmental protection, Administrative practice and procedure, Air pollution control, Indians, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: March 14, 2008. Elin D. Miller, Regional Administrator, Region 10. Chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 49—[AMENDED] 1. The authority citation for part 49 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart M—[Amended] 2. Section 49.10590 is amended by adding a note to the end of the section to read as follows: § 49.10590 Federally-promulgated regulations and Federal implementation plans. Note to § 49.10590: EPA entered into a Partial Delegation of Administrative Authority with the Quinault Indian Nation on October 4, 2007 for the rules listed in paragraphs (b), (g), and
(i)of this section. [FR Doc. E8-6669 Filed 4-2-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60 and 61 [AZ and NV-EPA-R09-OAR-2006-1014; FRL-8551-1] Delegation of New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants for the States of Arizona and Nevada AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is updating the Code of Federal Regulations
(CFR)delegation tables to reflect the current delegation status of the New Source Performance Standards
(NSPS)and National Emission Standards for Hazardous Air Pollutants (NESHAPs) in Arizona and Nevada. These updates were proposed in the **Federal Register** on June 21, 2007. DATES: *Effective Date:* This rule is effective on *May 5, 2008.* ADDRESSES: EPA established docket number EPA-R09-OAR-2006-1014 for this action. The index to the docket is available electronically at *http://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., confidential business information). 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. FOR FURTHER INFORMATION CONTACT: Cynthia G. Allen, EPA Region IX,
(415)947-4120, *allen.cynthia@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. Background II. Public Comment and EPA Response III. EPA Action IV. Statutory and Executive Order Reviews I. Background On June 21, 2007, EPA proposed to update the delegation tables in the Code of Federal Regulations, Title 40 (40 CFR) Parts 60 and 61, to allow easier access by the public to the status of delegations in Arizona and Nevada jurisdictions (see 72 FR 34209). The updated delegation tables include the delegations approved in response to recent requests, as well as those previously granted. The tables are shown at the end of this document. II. Public Comment and EPA Response EPA's proposed action provided a 30-day public comment period. During this period, we received one comment from the State of Nevada's Division of Environmental Protection (NDEP). NDEP noted that it requested delegation of Appendix B, Performance Specifications, of 40 CFR Part 60 (Appendix B), and that EPA approved this request by letter dated January 12, 2007. However, EPA's proposed rulemaking did not include Appendix B in the “Delegation Status for NSPS for Nevada” table. NDEP requested that EPA add Appendix B to Nevada's NSPS delegation status table. Appendix B was included in our approval letter of January 12, 2007 in error. Appendices to 40 CFR Parts 60 and 61 are not performance standards and are not delegable under Clean Air Act Sections 111(c)(1) or 112(l)(1). However, all applicable test methods and other requirements in the Appendices must be followed as required by the delegated subparts (see EPA's proposed rule published on January 14, 2002 (67 FR 1676) and subsequent final rule published on April 26, 2002 (67 FR 20652)). III. EPA Action No comments were submitted that change our assessment of the delegations as described in our proposed action. Therefore, as authorized in Sections 111(c)(1) and 112(l)(1) of the Clean Air Act, EPA is updating the CFR tables for Arizona and Nevada as proposed in the **Federal Register** on June 21, 2007. IV. 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 updates the list of approved delegations in the Code of Federal Regulations and imposes no additional requirements. 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 does not impose any additional enforceable duty beyond that required by state or local 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 updates the list of already-approved delegations, 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 or local rule implementing a federal standard. In reviewing state or local delegation submissions, our role is to approve state or local 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 or local government to use voluntary consensus standards (VCS), EPA has no authority to disapprove state or local submissions for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state or local submission, to use VCS in place of a state or local 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 June 2, 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)) of the Clean Air Act. List of Subjects in 40 CFR Parts 60 and 61 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of Sections 111 and 112 of the Clean Air Act, as amended (42 U.S.C. 7411 and 7412). Dated: March 19, 2008. Andrew Steckel, Acting Director, Air Division, Region IX. For the reasons set out in the preamble, Title 40, Chapter I, Parts 60 and 61 of the Code of Federal Regulations is amended as follows: PART 60—[AMENDED] 1. The authority citation for Part 60 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—General Provisions 2. Section 60.4 is amended by revising paragraphs (d)(1) and (d)(4) to read as follows: § 60.4 Address.
(d)* * *
(1)Arizona. The following table identifies delegations as of May 18, 2006: Delegation Status for New Source Performance Standards for Arizona Subpart Air pollution control agency Arizona DEQ Maricopa County Pima County Pinal County A General Provisions X X X X D Fossil-Fuel Fired Steam Generators Constructed After August 17, 1971 X X X X Da Electric Utility Steam Generating Units Constructed After September 18, 1978 X X X X Db Industrial-Commercial-Institutional Steam Generating Units X X X X Dc Small Industrial Steam Generating Units X X X X E Incinerators X X X X Ea Municipal Waste Combustors Constructed After December 20, 1989 and On or Before September 20, 1994 X X X X Eb Municipal Waste Combustors Constructed After September 20, 1994 X X X Ec Hospital/Medical/Infectious Waste Incinerators for Which Construction is Commenced After June 20, 1996 X X F Portland Cement Plants X X X X G Nitric Acid Plants X X X X H Sulfuric Acid Plant X X X X I Hot Mix Asphalt Facilities X X X X J Petroleum Refineries X X X X K Storage Vessels for Petroleum Liquids for Which Construction, Reconstruction, or Modification Commenced After June 11, 1973, and Prior to May 19, 1978 X X X X Ka Storage Vessels for Petroleum Liquids for Which Construction, Reconstruction, or Modification Commenced After May 18, 1978, and Prior to July 23, 1984 X X X X Kb Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced After July 23, 1984 X X X X L Secondary Lead Smelters X X X X M Secondary Brass and Bronze Production Plants X X X X N Primary Emissions from Basic Oxygen Process Furnaces for Which Construction is Commenced After June 11, 1973 X X X X Na Secondary Emissions from Basic Oxygen Process Steelmaking Facilities for Which Construction is Commenced After January 20, 1983 X X X X O Sewage Treatment Plants X X X X P Primary Copper Smelters X X X X Q Primary Zinc Smelters X X X X R Primary Lead Smelters X X X X S Primary Aluminum Reduction Plants X X X X T Phosphate Fertilizer Industry: Wet Process Phosphoric Acid Plants X X X X U Phosphate Fertilizer Industry: Superphosphoric Acid Plants X X X X V Phosphate Fertilizer Industry: Diammonium Phosphate Plants X X X X W Phosphate Fertilizer Industry: Triple Superphosphate Plants X X X X X Phosphate Fertilizer Industry: Granular Triple Superphosphate Storage Facilities X X X X Y Coal Preparation Plants X X X X Z Ferroalloy Production Facilities X X X X AA Steel Plants: Electric Arc Furnaces Constructed After October 21, 1974 and On or Before August 17, 1983 X X X X AAa Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels Constructed After August 7, 1983 X X X X BB Kraft Pulp Mills X X X X CC Glass Manufacturing Plants X X X X DD Grain Elevators X X X X EE Surface Coating of Metal Furniture X X X X FF (Reserved) GG Stationary Gas Turbines X X X X HH Lime Manufacturing Plants X X X X KK Lead-Acid Battery Manufacturing Plants X X X X LL Metallic Mineral Processing Plants X X X X MM Automobile and Light Duty Trucks Surface Coating Operations X X X X NN Phosphate Rock Plants X X X X PP Ammonium Sulfate Manufacture X X X X QQ Graphic Arts Industry: Publication Rotogravure Printing X X X X RR Pressure Sensitive Tape and Label Surface Coating Operations X X X X SS Industrial Surface Coating: Large Appliances X X X X TT Metal Coil Surface Coating X X X X UU Asphalt Processing and Asphalt Roofing Manufacture X X X X VV Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry X X X X WW Beverage Can Surface Coating Industry X X X X XX Bulk Gasoline Terminals X X X X AAA New Residential Wool Heaters X X X X BBB Rubber Tire Manufacturing Industry X X X X CCC (Reserved) DDD Volatile Organic Compounds
(VOC)Emissions from the Polymer Manufacturing Industry X X X X EEE (Reserved) FFF Flexible Vinyl and Urethane Coating and Printing X X X X GGG Equipment Leaks of VOC in Petroleum Refineries X X X X HHH Synthetic Fiber Production Facilities X X X X III Volatile Organic Compound
(VOC)Emissions From the Synthetic Organic Chemical Manufacturing Industry (SOCMI) Air Oxidation Unit Processes X X X X JJJ Petroleum Dry Cleaners X X X X KKK Equipment Leaks of VOC From Onshore Natural Gas Processing Plants X X X X LLL Onshore Natural Gas Processing: SO2 Emissions X X X X MMM (Reserved) NNN Volatile Organic Compound
(VOC)Emissions From Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations X X X X OOO Nonmetallic Mineral Processing Plants X X X X PPP Wool Fiberglass Insulation Manufacturing Plants X X X X QQQ VOC Emissions From Petroleum Refinery Wastewater Systems X X X X RRR Volatile Organic Compound Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Reactor Processes X X SSS Magnetic Tape Coating Facilities X X X X TTT Industrial Surface Coating: Surface Coating of Plastic Parts for Business Machines X X X X UUU Calciners and Dryers in Mineral Industries X X X VVV Polymeric Coating of Supporting Substrates Facilities X X X X WWW Municipal Solid Waste Landfills X X X AAAA Small Municipal Waste Combustion Units for Which Construction is Commenced After August 30, 1999 or for Which Modification or Reconstruction is Commended After June 6, 2001 X X CCCC Commercial and Industrial Solid Waste Incineration Units for Which Construction Is Commenced After November 30, 1999 or for Which Modification or Reconstruction Is Commenced on or After June 1, 2001 X X EEEE Other Solid Waste Incineration Units for Which Construction is Commenced After December 9, 2004, or for Which Modification or Reconstruction is Commenced on or After June 16, 2006 KKKK Stationary Combustion Turbines GGGG (Reserved)
(4)Nevada. The following table identifies delegations as of January 12, 2007: Delegation Status for New Source Performance Standards for Nevada Subpart Air pollution control agency Nevada DEP Clark County Washoe County A General Provisions X X X D Fossil-Fuel Fired Steam Generators Constructed After August 17, 1971 X X X Da Electric Utility Steam Generating Units Constructed After September 18, 1978 X Db Industrial-Commercial-Institutional Steam Generating Units X Dc Small Industrial Steam Generating Units X E Incinerators X X X Ea Municipal Waste Combustors Constructed After December 20, 1989 and On or Before September 20, 1994 X Eb Municipal Waste Combustors Constructed After September 20, 1994 X Ec Hospital/Medical/Infectious Waste Incinerators for Which Construction is Commenced After June 20, 1996 X F Portland Cement Plants X X X G Nitric Acid Plants X X H Sulfuric Acid Plants X X I Hot Mix Asphalt Facilities X X X J Petroleum Refineries X X K Storage Vessels for Petroleum Liquids for Which Construction, Reconstruction, or Modification Commenced After June 11, 1973, and Prior to May 19, 1978 X X X Ka Storage Vessels for Petroleum Liquids for Which Construction, Reconstruction, or Modification Commenced After May 18, 1978, and Prior to July 23, 1984 X X X Kb Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced After July 23, 1984 X L Secondary Lead Smelters X X X M Secondary Brass and Bronze Production Plants X X N Primary Emissions from Basic Oxygen Process Furnaces for Which Construction is Commenced After June 11, 1973 X X Na Secondary Emissions from Basic Oxygen Process Steelmaking Facilities for Which Construction is Commenced After January 20, 1983 X O Sewage Treatment Plants X X X P Primary Copper Smelters X X X Q Primary Zinc Smelters X X X R Primary Lead Smelters X X X S Primary Aluminum Reduction Plants X X T Phosphate Fertilizer Industry: Wet Process Phosphoric Acid Plants X X U Phosphate Fertilizer Industry: Superphosphoric Acid Plants X X V Phosphate Fertilizer Industry: Diammonium Phosphate Plants X X W Phosphate Fertilizer Industry: Triple Superphosphate Plants X X X Phosphate Fertilizer Industry: Granular Triple Superphosphate Storage Facilities X X Y Coal Preparation Plants X X X Z Ferroalloy Production Facilities X X AA Steel Plants: Electric Arc Furnaces Constructed After October 21, 1974 and On or Before August 17, 1983 X X AAa Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels Constructed After August 7, 1983 X BB Kraft pulp Mills X X CC Glass Manufacturing Plants X X DD Grain Elevators X X X EE Surface Coating of Metal Furniture X X X FF (Reserved) GG Stationary Gas Turbines X X X HH Lime Manufacturing Plants X X X KK Lead-Acid Battery Manufacturing Plants X X X LL Metallic Mineral Processing Plants X X X MM Automobile and Light Duty Trucks Surface Coating Operations X X X NN Phosphate Rock Plants X X X PP Ammonium Sulfate Manufacture X X QQ Graphic Arts Industry: Publication Rotogravure Printing X X X RR Pressure Sensitive Tape and Label Surface Coating Operations X X SS Industrial Surface Coating: Large Appliances X X X TT Metal Coil Surface Coating X X X UU Asphalt Processing and Asphalt Roofing Manufacture X X X VV Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry X X X WW Beverage Can Surface Coating Industry X X XX Bulk Gasoline Terminals X X AAA New Residential Wool Heaters BBB Rubber Tire Manufacturing Industry X CCC (Reserved) DDD Volatile Organic Compounds
(VOC)Emissions from the Polymer Manufacturing Industry X EEE (Reserved) FFF Flexible Vinyl and Urethane Coating and Printing X X GGG Equipment Leaks of VOC in Petroleum Refineries X X HHH Synthetic Fiber Production Facilities X X III Volatile Organic Compound
(VOC)Emissions From the Synthetic Organic Chemical Manufacturing Industry (SOCMI) Air Oxidation Unit Processes X JJJ Petroleum Dry Cleaners X X X KKK Equipment Leaks of VOC From Onshore Natural Gas Processing Plants X LLL Onshore Natural Gas Processing: SO <sup>2</sup> Emissions X MMM (Reserved) NNN Volatile Organic Compound
(VOC)Emissions From Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations X OOO Nonmetallic Mineral Processing Plants X X PPP Wool Fiberglass Insulation Manufacturing Plants X X QQQ VOC Emissions From Petroleum Refinery Wastewater Systems X RRR Volatile Organic Compound Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Reactor Processes SSS Magnetic Tape Coating Facilities X TTT Industrial Surface Coating: Surface Coating of Plastic Parts for Business Machines X UUU Calciners and Dryers in Mineral Industries X VVV Polymeric Coating of Supporting Substrates Facilities X WWW Municipal Solid Waste Landfills X AAAA Small Municipal Waste Combustion Units for Which Construction is Commenced After August 30, 1999 or for Which Modification or Reconstruction is Commended After June 6, 2001 X CCCC Commercial and Industrial Solid Waste Incineration Units for Which Construction Is Commenced After November 30, 1999 or for Which Modification or Reconstruction Is Commenced on or After June 1, 2001 X EEEE Other Solid Waste Incineration Units for Which Construction is Commenced After December 9, 2004, or for Which Modification or Reconstruction is Commenced on or After June 16, 2006 X KKKK Stationary Combustion Turbines X GGGG (Reserved) PART 61—[AMENDED] 3. The authority citation for part 61 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—General Provisions 4. Section 61.04 is amended by revising paragraphs (c)(9)(i) and (c)(9)(iv) to read as follows: § 61.04 Address.
(c)* * *
(9)* * *
(i)Arizona. The following table identifies delegations as of June 14, 2006: Delegation Status for National Emissions Standards for Hazardous Air Pollutants for Arizona Subpart Air pollution control agency Arizona DEQ Maricopa County Pima County Pinal County A General Provisions X X X X B Radon Emissions From Underground Uranium C Beryllium X X X X D Beryllium Rocket Motor Firing X X X X E Mercury X X X X F Vinyl Chloride X X X X G (Reserved) H Emissions of Radionuclides Other Than Radon From Department of Energy Facilities I Radionuclide Emissions From Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H J Equipment Leaks (Fugitive Emission Sources) of Benzene X X X K Radionuclide Emissions From Elemental Phosphorus Plants L Benzene Emissions from Coke By-Product Recovery Plants X X X X M Asbestos X X X X N Inorganic Arsenic Emissions From Glass Manufacturing Plants X O Inorganic Arsenic Emissions From Primary Copper Smelters X P Inorganic Arsenic Emissions From Arsenic Trioxide and Metallic Arsenic Production Facilities X X Q Radon Emissions From Department of Energy Facilities R Radon Emissions From Phosphogypsum Stacks S (Reserved) T Radon Emissions From the Disposal of Uranium Mill Tailings U (Reserved) V Equipment Leaks (Fugitive Emission Sources) X X X X W Radon Emissions From Operating Mill Tailings X (Reserved) Y Benzene Emissions From Benzene Storage Vessels X X X X Z-AA (Reserved) BB Benzene Emissions From Benzene Transfer Operations X X X X CC-EE (Reserved) FF Benzene Waste Operations X X X X
(iv)Nevada. The following table identifies delegations as of September 21, 2005: Delegation Status for National Emissions Standards for Hazardous Air Pollutants for Nevada Subpart Air pollution control agency Nevada DEP Clark County Washoe County A General Provisions X X B Radon Emissions From Underground Uranium C Beryllium X X X D Beryllium Rocket Motor Firing X X E Mercury X X F Vinyl Chloride X X G (Reserved) H Emissions of Radionuclides Other Than Radon From Department of Energy Facilities X I Radionuclide Emissions From Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H X J Equipment Leaks (Fugitive Emission Sources) of Benzene X K Radionuclide Emissions From Elemental Phosphorus Plants X L Benzene Emissions from Coke By-Product Recovery Plants X M Asbestos X X N Inorganic Arsenic Emissions From Glass Manufacturing Plants X O Inorganic Arsenic Emissions From Primary Copper Smelters X P Inorganic Arsenic Emissions From Arsenic Trioxide and Metallic Arsenic Production Facilities X Q Radon Emissions From Department of Energy Facilities R Radon Emissions From Phosphogypsum Stacks S (Reserved) T Radon Emissions From the Disposal of Uranium Mill Tailings U (Reserved) V Equipment Leaks (Fugitive Emission Sources) X W Radon Emissions From Operating Mill Tailings X (Reserved) Y Benzene Emissions from Benzene Storage Vessels X Z-AA (Reserved) BB Benzene Emissions From Benzene Transfer Operations X CC-EE (Reserved) FF Benzene Waste Operations X [FR Doc. E8-6915 Filed 4-2-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-R09-OAR-2008-0229; FRL-8550-9] Delegation of National Emission Standards for Hazardous Air Pollutants for Source Categories; State of Nevada, Nevada Division of Environmental Protection AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is amending certain regulations to reflect the current delegation status of national emission standards for hazardous air pollutants (NESHAP) in Nevada. Several NESHAP were delegated to the Nevada Division of Environmental Protection on December 4, 2007. The purpose of this action is to update the listing in the Code of Federal Regulations. DATES: This rule is effective on June 2, 2008 without further notice, unless EPA receives adverse comments by May 5, 2008. If we receive such comments, we will publish a timely withdrawal in the **Federal Register** to notify the public that this direct final rule will not take effect. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2008-0229, by one of the following methods: 1. *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the on-line instructions. 2. *E-mail: steckel.andrew@epa.gov.* 3. *Mail or delivery:* Andrew Steckel (AIR-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *http://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 *http://www.regulations.gov* or e-mail. *http://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 *http://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. FOR FURTHER INFORMATION CONTACT: Mae Wang, EPA Region IX,
(415)947-4124, *wang.mae@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. Background A. Delegation of NESHAP B. NDEP delegations II. EPA Action III. Statutory and Executive Order Reviews I. Background A. Delegation of NESHAP Section 112(l) of the Clean Air Act, as amended in 1990 (CAA), authorizes EPA to delegate to state or local air pollution control agencies the authority to implement and enforce the standards set out in the Code of Federal Regulations, Title 40 (40 CFR), part 63, National Emission Standards for Hazardous Air Pollutants for Source Categories. On November 26, 1993, EPA promulgated regulations, codified at 40 CFR part 63, Subpart E (hereinafter referred to as “Subpart E”), establishing procedures for EPA's approval of state rules or programs under section 112(l) (see 58 FR 62262). Subpart E was later amended on September 14, 2000 (see 65 FR 55810). Any request for approval under CAA section 112(l) must meet the approval criteria in 112(l)(5) and Subpart E. To streamline the approval process for future applications, a state or local agency may submit a one-time demonstration that it has adequate authorities and resources to implement and enforce any CAA section 112 standards. If such demonstration is approved, then the state or local agency would no longer need to resubmit a demonstration of these same authorities and resources for every subsequent request for delegation of CAA section 112 standards. However, EPA maintains the authority to withdraw its approval if the State does not adequately implement or enforce an approved rule or program. B. NDEP Delegations On May 27, 1998, EPA published a direct final action delegating to the Nevada Division of Environmental Protection
(NDEP)several NESHAP and approving NDEP's delegation mechanism for future standards (see 63 FR 28906). That action explained the procedure for EPA to grant delegations to NDEP by letter, with periodic **Federal Register** listings of standards that have been delegated. On November 1, 2007, NDEP requested delegation of the following NESHAP contained in 40 CFR part 63: • Subpart IIII—NESHAP: Surface Coating of Automobiles and Light-Duty Trucks • Subpart PPPP—NESHAP for Surface Coating of Plastic Parts and Products • Subpart GGGGG—NESHAP: Site Remediation • Subpart HHHHH—NESHAP: Miscellaneous Coating Manufacturing • Subpart DDDDDD—NESHAP for Polyvinyl Chloride and Copolymers Production Area Sources • Subpart EEEEEE—NESHAP for Primary Copper Smelting Area Sources • Subpart FFFFFF—NESHAP for Secondary Copper Smelting Area Sources • Subpart GGGGGG—NESHAP for Primary Nonferrous Metals Area Sources—Zinc, Cadmium, and Beryllium On December 4, 2007, EPA granted delegation to NDEP for these NESHAP, along with any amendments to previously-delegated NESHAP, as of July 1, 2007. Today's action is serving to notify the public of the December 4, 2007, delegations and to codify these delegations into the Code of Federal Regulations. II. EPA Action Today's document serves to notify the public of the delegation of NESHAP to NDEP on December 4, 2007. Today's action will codify these delegations into the Code of Federal Regulations. III. 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 updates the list of approved delegations in the Code of Federal Regulations and imposes no additional requirements. 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 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 updates the list of already-approved delegations, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a federal standard. In reviewing state delegation submissions, our role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove state submissions for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the 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 June 2, 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 63 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of Section 112 of the Clean Air Act, as amended, 42 U.S.C. 7412. Dated: March 19, 2008. Andrew Steckel, Acting Director, Air Division, Region IX. Title 40, chapter I, part 63 of the Code of Federal Regulations is amended as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart E—Approval of State Programs and Delegation of Federal Authorities 2. Section 63.99 is amended by revising paragraph (a)(28)(i) to read as follows: § 63.99 Delegated Federal authorities.
(a)* * *
(28)* * *
(i)The following table lists the specific part 63 standards that have been delegated unchanged to the air pollution control agencies in the State of Nevada. The
(X)symbol is used to indicate each category that has been delegated. Delegation Status for Part 63 Standards—Nevada Subpart Description NDEP 1 WCAQMD 2 CCDAQM 3 A General Provisions X X F Synthetic Organic Chemical Manufacturing Industry X G Synthetic Organic Chemical Manufacturing Industry: Process Vents, Storage Vessels, Transfer Operations, and Wastewater X H Organic Hazardous Air Pollutants: Equipment Leaks X I Organic Hazardous Air Pollutants: Certain Processes Subject to the Negotiated Regulation for Equipment Leaks X J Polyvinyl Chloride and Copolymers Production X L Coke Oven Batteries X M Perchloroethylene Dry Cleaning X X N Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks X X O Ethylene Oxide Sterilization Facilities X X Q Industrial Process Cooling Towers X R Gasoline Distribution Facilities X X S Pulp and Paper X T Halogenated Solvent Cleaning X X U Group I Polymers and Resins X W Epoxy Resins Production and Non-Nylon Polyamides Production X X Secondary Lead Smelting X Y Marine Tank Vessel Loading Operations X AA Phosphoric Acid Manufacturing Plants X BB Phosphate Fertilizers Production Plants X CC Petroleum Refineries X DD Off-Site Waste and Recovery Operations X EE Magnetic Tape Manufacturing Operations X GG Aerospace Manufacturing and Rework Facilities X HH Oil and Natural Gas Production Facilities X II Shipbuilding and Ship Repair (Surface Coating) X JJ Wood Furniture Manufacturing Operations X KK Printing and Publishing Industry X X LL Primary Aluminum Reduction Plants X MM Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills X OO Tanks—Level 1 X PP Containers X QQ Surface Impoundments X RR Individual Drain Systems X SS Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process X TT Equipment Leaks—Control Level 1 X UU Equipment Leaks—Control Level 2 X VV Oil-Water Separators and Organic-Water Separators X WW Storage Vessels (Tanks)—Control Level 2 X XX Ethylene Manufacturing Process Units: Heat Exchange Systems and Waste Operations X YY Generic MACT Standards X CCC Steel Pickling X DDD Mineral Wool Production X EEE Hazardous Waste Combustors X GGG Pharmaceuticals Production X HHH Natural Gas Transmission and Storage Facilities X III Flexible Polyurethane Foam Production X JJJ Group IV Polymers and Resins X LLL Portland Cement Manufacturing Industry X MMM Pesticide Active Ingredient Production X NNN Wool Fiberglass Manufacturing X OOO Manufacture of Amino/Phenolic Resins X PPP Polyether Polyols Production X QQQ Primary Copper Smelting X RRR Secondary Aluminum Production X TTT Primary Lead Smelting X UUU Petroleum Refineries: Catalytic Cracking, Catalytic Reforming, and Sulfur Recovery Units X VVV Publicly Owned Treatment Works X XXX Ferroalloys Production X AAAA Municipal Solid Waste Landfills X CCCC Manufacturing of Nutritional Yeast X DDDD Plywood and Composite Wood Products X EEEE Organic Liquids Distribution (non-gasoline) X FFFF Miscellaneous Organic Chemical Manufacturing X GGGG Solvent Extraction for Vegetable Oil Production X HHHH Wet-Formed Fiberglass Mat Production X IIII Surface Coating of Automobiles and Light-Duty Trucks X JJJJ Paper and Other Web Coating X KKKK Surface Coating of Metal Cans X MMMM Miscellaneous Metal Parts and Products X NNNN Large Appliances X OOOO Printing, Coating, and Dyeing of Fabrics and Other Textiles X PPPP Surface Coating of Plastic Parts and Products X QQQQ Wood Building Products X IRRRR Surface Coating of Metal Furniture X SSSS Surface Coating of Metal Coil X TTTT Leather Finishing Operations X UUUU Cellulose Products Manufacturing X VVVV Boat Manufacturing X WWWW Reinforced Plastics Composites Production X XXXX Tire Manufacturing X YYYY Stationary Combustion Turbines X ZZZZ Stationary Reciprocating Internal Combustion Engines X AAAAA Lime Manufacturing Plants X BBBBB Semiconductor Manufacturing X CCCCC Coke Oven: Pushing, Quenching and Battery Stacks X DDDDD Industrial, Commercial, and Institutional Boiler and Process Heaters X EEEEE Iron and Steel Foundries X FFFFF Integrated Iron and Steel X GGGGG Site Remediation X HHHHH Miscellaneous Coating Manufacturing X JJJJJ Brick and Structural Clay Products Manufacturing X KKKKK Clay Ceramics Manufacturing X LLLLL Asphalt Roofing and Processing X MMMMM Flexible Polyurethane Foam Fabrication Operation X NNNNN Hydrochloric Acid Production X PPPPP Engine Test Cells/Stands X QQQQQ Friction Products Manufacturing X SSSSS Refractory Products Manufacturing X DDDDDD Polyvinyl Chloride and Copolymers Production Area Sources X EEEEEE Primary Copper Smelting Area Sources X FFFFFF Secondary Copper Smelting Area Sources X GGGGGG Primary Nonferrous Metals Area Sources—Zinc, Cadmium, and Beryllium X 1 Nevada Division of Environmental Protection. 2 Washoe County Air Quality Management Division. 3 Clark County Department of Air Quality Management. [FR Doc. E8-6919 Filed 4-2-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA-RO3-RCRA-2008-0256; FRL-8548-9] Virginia: Final Authorization of State Hazardous Waste Management Program Revision AGENCY: Environmental Protection Agency (EPA). ACTION: Immediate final rule. SUMMARY: Virginia has applied to EPA for Final authorization of the revisions of its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these revisions satisfy all requirements needed to qualify for Final authorization, and is authorizing the State's revisions through this immediate final action. EPA is publishing this rule to authorize the revisions without a prior proposal because we believe this action is not controversial and do not expect comments that oppose it. Unless we receive written comments that oppose this authorization during the comment period, the decision to authorize Virginia's changes to its hazardous waste program will take effect. If we receive comments that oppose this action, we will publish a document in the **Federal Register** withdrawing this rule before it takes effect and a separate document in the proposed rules section of this **Federal Register** will serve as a proposal to authorize the changes. DATES: This Final authorization will become effective on June 2, 2008, unless EPA receives adverse written comment by May 5, 2008. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the **Federal Register** and inform the public that this authorization will not take effect. ADDRESSES: Submit your comments by one of the following methods: 1. Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. 2. E-mail: Thomas UyBarreta, *uybarreta.thomas@epa.gov* . 3. First Class or Overnight Mail: Thomas UyBarreta, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029. 4. Hand Delivery or Courier. Deliver your comments to Thomas UyBarreta, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029. *Instructions:* We must receive your comments by May 5, 2008. Please refer to Docket Number EPA-R03-RCRA-2008-0256. Do not submit information that you consider to be Confidential Business Information
(CBI)or otherwise protected through regulations.gov, or e-mail. Such comments should be sent via First Class or overnight mail. The Federal 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 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, even if you sent an e-mail comment directly to EPA, 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. You can view and copy Virginia's application and associated publicly available materials from 8:15 a.m. to 4:30 p.m., Monday through Friday at the following locations: Virginia Department of Environmental Quality, Waste Division, 629 East Main Street, Richmond, VA 23219, Phone number:
(804)698-4213, attn: Robert Wickline; and Virginia Department of Environmental Quality, West Central Regional Office, 3019 Peters Creek Road, Roanoke, VA 24019, Phone number:
(540)562-6872, attn: Aziz Farahmand; and EPA Region Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number:
(215)814-5254. Interested persons wanting to examine these documents should make an appointment with the office at least five business days in advance. FOR FURTHER INFORMATION CONTACT: Thomas UyBarreta, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029. Telephone 215-814-2953. SUPPLEMENTARY INFORMATION: A. Why are Revisions to State Programs Necessary? States that have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program is revised, States must revise their programs and ask EPA to authorize the revisions. Revisions to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must revise their programs because of revisions to EPA's regulations in 40 Code of Federal Regulations
(CFR)parts 124, 260 through 266, 268, 270, 273 and 279. B. What Decisions Have We Made in This Rule? We conclude that Virginia's program revision application of October 10, 2007, to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Virginia Final authorization to operate its hazardous waste program with the revisions described in the authorization application, except as described in Sections H. 1, 3, and 4 of this immediate final rule. Virginia has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States even before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Virginia, including issuing permits, until the State is granted authorization to do so. C. What is the Effect of This Authorization Decision? The effect of this decision is that a facility in Virginia subject to RCRA will have to comply with the authorized revised State requirements instead of the equivalent Federal requirements in order to comply with RCRA. While Virginia has enforcement responsibilities under its State hazardous waste program for violations of such program, EPA nevertheless retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to: • Take enforcement actions regardless of whether the State has taken its own actions; • enforce RCRA requirements and suspend or revoke permits; and • perform inspections, and require monitoring, tests, analyses or reports. This action does not impose additional requirements on the regulated community because the regulations for which Virginia is being authorized by today's action are already effective, and are not changed by today's action. D. Why Wasn't There a Proposed Rule Before This Rule? EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's **Federal Register** we are publishing a separate document that proposes to authorize the State program changes. E. What Happens If EPA Receives Comments That Oppose This Action? If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the **Federal Register** before the rule becomes effective. EPA will base any further decision on the authorization of the revised State program on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time. If we receive comments that oppose only the authorization of a particular revision to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program revisions that the comments do not oppose will become effective on the date specified above. The **Federal Register** withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn. F. What has Virginia Previously Been Authorized For? Initially, Virginia received final authorization to implement its hazardous waste management program effective December 18, 1984 (49 FR 47391). EPA granted authorization for revisions to Virginia's regulatory program effective August 13, 1993 (58 FR 32855); September 29, 2000 (65 FR 46607); June 20, 2003 (68 FR 36925); and July 10, 2006 (71 FR 27216). G. What Revisions Are We Authorizing With This Action? On October 10, 2007, Virginia submitted a program revision application, seeking authorization of revisions to its program in accordance with 40 CFR 271.21. Virginia's revision application includes various regulations that are equivalent to, and no less stringent than, revisions to the Federal hazardous waste program, as published in the **Federal Register** from July 1, 2004 through July 19, 2006, as well as miscellaneous changes to its previously authorized program. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Virginia's hazardous waste program revisions set forth in its October 10, 2007 application satisfy all of the requirements necessary to qualify for final authorization except as described in sections H. 1, 3, and 4 of this immediate final rule. Therefore, EPA grants Virginia final authorization for the following program revisions. Virginia seeks authority to administer the Federal requirements that are listed in Table 1. Virginia incorporates by reference these Federal provisions, in accordance with the dates specified in Title 9, Virginia Administrative Code (9 VAC 20-60-18). Table 1 also lists Virginia's requirements that are being recognized as no less stringent than the analogous Federal requirements. The Virginia Waste Management Act (VWMA), enacted by the 1986 session of Virginia's General Assembly and recodified in 1988 as Chapter 14, Title 10.1, Code of Virginia, forms the basis of the Virginia program. The regulatory references are to Title 9, Virginia Administrative Code (9 VAC) effective May 22, 2006. Table 1.—Virginia's Analogs to the Federal Requirements Description of federal requirement (revision checklists 1 ) Federal Register Analogous Virginia authority RCRA Cluster XV, 2 Non-HSWA National Environmental Performance Track Program; Corrections, Checklist 204 69 FR 62217, 10/25/04 Title 9, Virginia Code (9 VAC) §§ 20-60-18 and 20-60-262 A. RCRA Cluster XV, HSWA Identification and Listing of Hazardous Waste; Dyes and/or Pigments Production Wastes; Land Disposal Restrictions for Newly Identified Wastes; CERCLA Hazardous Substance Designation and Reportable Quantities; Designation of Five Chemicals as Appendix VIII Constituents; Addition of Four Chemicals to the Treatment Standards of F039 and the Universal Treatment Standards, Checklist 206 70 FR 9138, 2/24/05 9 VAC §§ 20-60-18, 20-60-261 A, and 20-60-268 A. RCRA Cluster XV, HSWA/Non-HSWA Modification of the Hazardous Waste Manifest System, Checklist 207 70 FR 10776, 3/4/05 9 VAC §§ 20-60-18, 20-60-260 A, 20-60-261 A, 20-60-262 A, 20-60-263 A, 20-60-264 A, and 20-60-265 A. Testing and Monitoring Activities; Final Rule: Methods Innovation Rule and SW-846 Final Update IIIB, Checklist 208 70 FR 34538, 6/14/05 9 VAC §§ 20-60-18, 20-60-260 A, 20-60-261 A, 20-60-264 A, 20-60-265 A, 20-60-266 A, 20-60-268 A, 20-60-270 A, and 20-60-279 A. Modification of the Hazardous Waste Manifest System, Checklist 207 70 FR 35034, 6/16/05 9 VAC §§ 20-60-18, 20-60-262 A, 20-60-264 A, and 20-60-265 A. Methods Innovation Rule and SW-846 Update, Checklist 208 70 FR 44150, 8/1/05 9 VAC §§ 20-60-18, 20-60-261 A, and 20-60-264 A. RCRA Cluster XVI, Non-HSWA Universal Waste Rule: Specific Provisions for Mercury Containing Equipment, Checklist 209 70 FR 45508, 8/5/05 9 VAC §§ 20-60-18, 20-60-260 A, 20-60-261 A, 20-60-264 A, 20-60-265 A, 20-60-270 A, and 20-60-273 A. Standardized Permit for RCRA Hazardous Waste Management Facilities, Checklist 210 70 FR 53420, 9/8/05 9 VAC §§ 20-60-18, 20-124 A, 20-260 A, 20-261 A, 20-267 A, and 20-270 A. Revision of Wastewater Treatment Exemptions for Hazardous Waste Mixtures, Checklist 211 70 FR 57769, 10/4/05 9 VAC §§ 20-60-18, and 20-60-261 A. RCRA Cluster XVI, HSWA/Non-HSWA National Emission Standards for Hazardous Air Pollutants: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors (Phase I Final Replacement Standards and Phase II), Checklist 212 70 FR 59402, 10/12/05 9 VAC §§ 20-60-18, 20-60-260 A, 20-60-264 A, 20-60-265 A, 20-60-266 A, and 20-60-270 A. RCRA Burden Reduction Initiative, Checklist 213 71 FR 16862, 4/4/06 9 VAC §§ 20-60-18, 9 VAC 20-60-260 A, 9 VAC 20-60-261 A, 9 VAC 20-60-264 A, 9 VAC 20-60-265 A, 9 VAC 20-60-266 A, 9 VAC 20-60-268 A, 9 VAC 20-60-270 A. Other Identification and Listing of Hazardous Waste Final Exclusion 70 FR 21153, 4/25/05 9 VAC §§ 20-60-18, and 20-60-261 A. Identification and Listing of Hazardous Waste 69 FR 56357, 9/21/04 9 VAC §§ 20-60-18, and 20-60-261 A. Identification and Listing of Hazardous Waste 69 FR 60557, 10/12/04 9 VAC §§ 20-60-18 and 20-60-261 A. Nonwaste waters from Productions of Dyes, Pigments, and Food, Drug, and Cosmetic Colorants 70 FR 35032,6/16/05 9 VAC §§ 20-60-18, 20-60-261 A, and 20-60-268 A. Identification and Listing of Hazardous Waste; Final Exclusion 70 FR 42499, 7/25/05 9 VAC §§ 20-60-18, and 20-60-261 A. Final Exclusion for Identification and Listing Hazardous Waste 70 FR 44496, 8/3/05 9 VAC §§ 20-60-18, and 20-60-261 A. Site-Specific Treatment Variances for Heritage Environmental Services LLC and Chemical Waste Management, Chemical Services, Inc 70 FR 44505, 8/3/05 9 VAC §§ 20-60-18, and 20-60-268 A. Final Exclusion for Identification and Listing Hazardous Waste 70 FR 49187, 8/23/05 9 VAC §§ 20-60-18, and 20-60-261 A. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Amendment 70 FR 51638, 8/31/05 9 VAC §§ 20-60-18, and 20-60-261 A. Identification and Listing of Hazardous Waste 70 FR 60217, 10/17/05 9 VAC §§ 20-60-18, and 20-60-261 A. Identification and Listing of Hazardous Waste; Amendment 70 FR 71002, 11/25/05 9 VAC §§ 20-60-18 and 20-60-261 A. Identification and Listing of Hazardous Waste; Final Exclusion 70 FR 71002, 11/25/05 9 VAC §§ 20-60-18 and 20-60-261 A. Identification and Listing of Hazardous Waste; Final Exclusion 70 FR 76168, 12/23/05 9 VAC §§ 20-60-18 and 20-60-261 A. Site-Specific Variance From the Land Disposal Restrictions Treatment Standard for 1,3-Phenylenediamine (1,3-PDA) 71 FR 6209, 2/7/06 9 VAC §§ 20-60-18 and 20-60-268 A. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Amendment 71 FR 9723, 2/27/06 9 VAC §§ 20-60-18 and 20-60-261 A. 1 A Revision Checklist is a document that addresses the specific revisions made to the Federal regulations by one or more related final rules published in the **Federal Register** . EPA develops these checklists as tools to assist States in developing their authorization applications and in documenting specific State analogs to the Federal Regulations. For more information see EPA's RCRA State Authorization web page at *http://www.epa.gov/epaoswer/hazwaste/state.* 2 A RCRA “Cluster” is a set of Revision Checklists for Federal rules, typically promulgated over a 12-month period starting on July 1 and ending on June 30 of the following year. H. Where Are the Revised Virginia Rules Different From the Federal Rules? 1. Virginia Requirements That Are Broader in Scope Than the Federal Program The Virginia hazardous waste program contains certain provisions that are beyond the scope of the Federal program. Virginia's statutory provision § 10.1-1426 F, which is related to the Federal Regulations at 40 CFR 261.5 and 261.4(b)(1), explains the requirements allowing local or state agencies to collect hazardous waste from exempt small quantity generators. The Virginia code is broader in scope because there is not a corresponding part of the Federal program that has such a restriction. These broader in scope provisions are not part of the program being authorized by today's action. EPA cannot enforce requirements that are broader in scope, although compliance with such provisions is required by Virginia law. 2. Virginia Requirements That Are More Stringent Than the Federal Program The Virginia hazardous waste program contains no new provisions that are more stringent than those required by the RCRA program as codified in the July 1, 2006 edition of title 40 of the Code of Federal Regulations (CFR). 3. Virginia's Adoption of EPA's Site-Specific Delisting and Variance Decisions In its regulations, Virginia has adopted EPA's decisions relative to the site-specific delistings published between September 21, 2004 and February 27, 2006 (69 FR 56357, 69 FR 60557, 70 FR 21153, 70 FR 42499, 70 FR 44496, 70 FR 49187, 70 FR 51638, 70 FR 71002, 70 FR 71002, 70 FR 76168, 71 FR 9723), as well as the site specific treatment variances from the Land Disposal Restrictions
(LDR)treatment standards published on August 3, 2005 (70 FR 44505) and February 7, 2006 (71 FR 6209). EPA today is not authorizing Virginia to delist wastes or to grant treatment variances. With regard to waste delisted as a hazardous waste by EPA, the authority of the Department of Environmental Quality is limited to recognition of the waste as a delisted waste in Virginia, and the supervision of waste management activities for the delisted waste when the activities occur within the Commonwealth of Virginia. Virginia is not authorized to delist wastes on behalf of the EPA, or to otherwise administer any case decision to issue, revoke, or continue a delisting of a waste by EPA. Similarly, while Virginia is recognizing EPA's decision regarding the site-specific treatment variances, the authority to grant such variances remains with the EPA. 4. EPA Is Not Authorizing Portions of the Uniform Hazardous Waste Manifest Rule (70 FR 10776) Virginia has adopted the Uniform Hazardous Waste Manifest Rule (70 FR 10776, March 4, 2005) without exception; however, there are non-delegable Federal functions addressed in that Rule. Specifically, authority must be left with the federal government as set forth in 40 CFR 262.21, 262.60(e), 263.20(g)(4), 264.71(a)(3), and 265.71(a)(3). In its incorporation by reference of 40 CFR Part 263, Virginia appropriately does not substitute the term “U.S. Customs Official” that appears in 40 CFR 263.20(g)(4). As a result, this provision is herein included in Virginia's authorized program. However, Virginia must make the following modifications to its incorporation by reference of 40 CFR parts 262, 264, and 265 in order to clarify that the enforcement authority for the non-delegable provisions in those parts remains with EPA: • 9 VAC 20-60-262 B must state that, at 40 CFR 262.21 and 262.60(e), “EPA” means the United States Environmental Protection Agency, in order to maintain the Federal authority for the EPA Manifest Registry functions and the notification requirements for imports of hazardous waste; • 9 VAC 20-60-264 B must state that, at 40 CFR 264.71(a)(3), “U.S. Environmental Protection Agency” means the United States Environmental Protection Agency, in order to maintain Federal authority for the notification requirements for imports of hazardous waste; • 9 VAC 20-60-265 B must state that, at 40 CFR 265.71(a)(3), the term “U.S. Environmental Protection Agency” means the United States Environmental Protection Agency, in order to maintain the Federal Authority for the notification requirements for imports of hazardous waste. Because these provisions have not yet been amended, EPA is not authorizing them at this time. EPA will authorize Virginia to administer the above regulations after they are modified accordingly. I. Who Handles Permits After the Authorization Takes Effect? After authorization, Virginia will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which EPA issued prior to the effective date of this authorization until the timing and process for effective transfer to the State are mutually agreed upon. EPA and Virginia agree to coordinate the administration of permits in order to maintain consistency. EPA will not issue any more new permits or new portions of permits for the provisions included in this revised authorization after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Virginia is not yet authorized. J. How Does This Action Affect Indian Country (18 U.S.C. 115) in Virginia? Virginia is not seeking authorization to operate the program on Indian lands, since there are no Federally-recognized Indian lands in Virginia. K. What is Codification and Is EPA Codifying Virginia's Hazardous Waste Program as Authorized in This Rule? Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart VV for this authorization of Virginia's revised program until a later date. L. Administrative Requirements The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action 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 action authorizes 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). For the same reason, this action would not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). In any case, Executive Order 13175 does not apply to this rule since there are no Federally recognized tribes in Region 3. This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks that may disproportionately affect children. 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)) because it is not a significant regulatory action under Executive Order 12866. Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order. 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 document 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 in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . Although this action is not a “major rule” as defined by 5 U.S.C. 804(2), this action will be effective June 2, 2008. List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b). Dated: March 18, 2008. William T. Wisniewski, Acting Regional Administrator, EPA Region III. [FR Doc. E8-6724 Filed 4-2-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 422 and 423 [CMS-4133-F] RIN 0938-AP25 Medicare Program; Modification to the Weighting Methodology Used To Calculate the Low-Income Benchmark Amount AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Final rule. SUMMARY: This final rule changes the weighting methodology used to calculate the low-income benchmark premium amount (benchmark) for 2009 and thereafter. Under this final rule, the benchmark weighting methodology is adjusted so that the relative weights of the Medicare Advantage Prescription Drug (MA-PD) plan premiums and Prescription Drug Plan
(PDP)plan premiums in the low-income benchmark premium amount reflect the distribution of enrollment of beneficiaries eligible for the low-income subsidy in each plan. DATES: *Effective Dates:* These regulations are effective on May 31, 2008. FOR FURTHER INFORMATION CONTACT: Deondra Moseley,
(410)786-4577. Meghan Elrington,
(410)786-8675. SUPPLEMENTARY INFORMATION: I. Background The beneficiary premiums for Prescription Drug Plans
(PDPs)are based on an annual bidding process. Each year the beneficiary premium for a Part D plan can change as a result of this bidding process. In addition, each year, as required by statute, CMS recalculates the Federal Part D premium low-income subsidy
(LIS)available to low-income beneficiaries based on the new premiums for plans in each region. As a result of these premium and subsidy changes, the premium for a Part D plan can be fully covered by the LIS in one year and not the following year. The amount of the premium subsidy available to LIS-eligible individuals cannot be calculated until after bids are submitted for the calendar year in question, because the subsidy amount is based on the bids that are submitted. Therefore, a PDP sponsor whose premium for LIS-eligible enrollees is currently zero does not know at the time its bid is submitted whether the premium that would result from its bid will be higher or lower than the premium subsidy amount. LIS-eligible individuals enrolled in a PDP that does not charge them a premium are faced with the possibility that the plan they are enrolled in will impose a premium during the next calendar year that would require them to make monthly payments. Section 1860D-1(b)(1)(C) of the Social Security Act (the Act) mandates the initial enrollment of full-benefit dual eligible individuals not choosing a plan into a PDP where they would not pay a premium. It does not, however, require that individuals be reassigned to a plan that would not charge them a premium, if they would be required to pay a premium in their plan the following calendar year. Using our authority under Section 1860D-1(b)(1)(A) of the Act to, “establish a process for the enrollment, disenrollment, termination, and change of enrollment of Part D eligible individuals in prescription drug plans,” we have specified that LIS-eligible individuals facing the above situation may “elect” a PDP with no premium (to which they would be randomly assigned) by taking no action. We have referred to this process as our reassignment process. Beneficiaries eligible for the full low-income premium subsidy who have not chosen a plan on their own, including beneficiaries dually eligible for benefits under Titles XVIII and XIX of the Act, are subject to reassignment. Beneficiaries eligible for a partial premium subsidy are not subject to reassignment. For 2008, the number of beneficiaries reassigned to a different organization under this process varied widely by region, ranging from as few as 17 beneficiaries to approximately 402,322 beneficiaries. The average number of beneficiaries reassigned to an organization other than the one with which they were enrolled was 34,044 per region. Alternatively, LIS beneficiaries can affirmatively elect to stay in their plan and begin paying a premium, or choose another plan with or without a premium. While the reassignment policy prevents an LIS-eligible individual who did not choose to elect a plan from being charged a premium, it disrupts continuity and stability in coverage. Individuals who are reassigned may have to change their pharmacy, get new copies of their prescription from their doctor, and determine whether they need a change in medications because the formulary might be different. Currently, under the demonstration project entitled, “Medicare Demonstration to Transition Enrollment of Low-Income Subsidy Beneficiaries” (established in 2007 and extended to 2008), if the premium amount for a LIS-eligible individual in the above situation is lower than a specified “de minimis” amount, the individual would not be charged this de minimis amount, and could remain in his or her current plan without paying a premium. This demonstration also transitions the calculation of the low-income benchmark premium amount for a region from a method that weights the standardized Part D bids for PDPs equally to the statutory method required under the current regulation, which calculates the benchmarks by weighting the bids for PDPs and Medicare Advantage Prescription Drug (MA-PD) plans in that region based on each plan's share of total Part D enrollment. While the evaluation for this demonstration project is still underway, we believe it has demonstrated the advantages of continuity of care and stability. In the proposed rule published on January 8, 2008, “Option for Prescription Drug Plans to Lower their Premiums for Low-income Subsidy Beneficiaries” (73 FR 1301), we proposed an approach to reducing the disruption caused by the re-assignment process. In that proposed rule, we proposed an approach that focused on the premiums that would be charged to LIS-eligible individuals in cases in which they would be subject to paying a premium if they stayed in the plan they were in. Specifically, we proposed, under certain circumstances, to give PDP Sponsors the option of setting a separate premium amount for such LIS-eligible individuals at the low-income benchmark amount. We expected this policy to reduce the number of beneficiaries who would have to be re-assigned, and would ensure a choice of at least five no-premium plans for full LIS-eligible individuals in each region. Requirements for Issuance of Regulations Section 902 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(MMA)amended section 1871(a) of the Act and requires the Secretary, in consultation with the Director of the Office of Management and Budget, to establish and publish timelines for the publication of Medicare final regulations based on the previous publication of a Medicare proposed or interim final regulation. Section 902 of the MMA also states that the timelines for these regulations may vary but shall not exceed 3 years after publication of the preceding proposed or interim final regulation except under exceptional circumstances. This final rule responds to comments we received on provisions set forth in the January 8, 2008 proposed rule. In addition, this final rule has been published within the 3-year time limit imposed by section 902 of the MMA. Therefore, we believe that the final rule is in accordance with the Congress' intent to ensure timely publication of final regulations. II. Analysis of the Proposed Rule and Responses to Public Comments We received 32 timely items of correspondence in response to the January 8, 2008 proposed rule. We received comments from a broad spectrum of commenters, including consumer groups, health plans and industry trade associations, and States. Approximately 13 comments were from consumer groups, 9 comments were from health plans and industry associations, 5 comments were from States, 3 comments were from pharmacists/providers, and 2 comments were from students. With a few exceptions, the commenters were concerned that the proposed rule would not adequately address the reassignment issue, and suggested alternative approaches. Virtually all of these commenters recommended that, rather than adopting the proposed approach, we consider alternative methods for calculating the low-income benchmark premium amounts. The following is a summary of the public comments and our responses. *Comment:* Two commenters proposed that the low-income benchmark premium amounts be calculated by weighting each plan's premium by its share of total LIS enrollment, rather than its share of total Part D enrollment. *Response:* Because section 1860D-14(b)(2) of the Act requires only that the premium calculation be “weighted”, we believe that the statute could reasonably be interpreted to permit this proposed weighting methodology, and in response to these comments we have determined that this approach more effectively addresses the LIS reassignment issue that the proposed rule was intended to address. Therefore, we are adopting this approach in our final rule instead of our originally proposed option for PDPs to reduce their premiums for full-subsidy eligible beneficiaries. Specifically, the benchmark amounts for each Part D region will be calculated as a weighted average of the Part D premium amounts for basic Part D coverage with the weight for each PDP and MA-PD plan equal to a percentage in which the numerator is equal to the number of LIS eligible beneficiaries enrolled in the Part D plan in the reference month and the denominator is equal to the total number of LIS eligible beneficiaries enrolled in PDP and MA-PD plans (not including PACE, private fee-for-services plans or 1876 cost plans) in the reference month. Currently, CMS calculates the weighted portion of the low-income benchmark premium amount using a weighted average of the MA and PDP premiums that is based on total Part D enrollment. MA-PD sponsors can lower their Part D premiums through the application of Part C rebates. As a result, the Part D premiums for MA-PD plans tend to be lower than PDP premiums. In addition, the benchmark amounts tend to be significantly lower in regions with high MA-PD penetration than in other Part D regions. The lower benchmarks have contributed to large-scale reassignments of LIS beneficiaries in many of these regions. This is because the relatively low benchmarks result in many PDPs having a basic Part D premium that is not fully covered by the Federal premium subsidy. As noted above, CMS has reassigned full-subsidy beneficiaries in these PDPs to different, lower-premium PDPs in order to avoid a financial hardship for these beneficiaries. The conclusion of the “Medicare Demonstration to Transition Enrollment of Low-Income Subsidy Beneficiaries,” will put increased downward pressure on the benchmarks in these regions with high MA-PD enrollment and upward pressure on the number of reassignments. Calculating the benchmark amounts using a weighted average based on LIS enrollment, however, will help stabilize the benchmarks in these regions. As noted above, Part D beneficiary premiums for PDPs tend to be higher than for MA-PDs. In addition, PDPs tend to have a greater share of LIS enrollment because of auto and facilitated enrollment. As a result, weighting Part D plan premiums by total LIS enrollment gives greater weight to PDP premiums and tends to increase the benchmarks. As compared to the current regulatory formula, we estimate that this change in the methodology for calculating the benchmarks would have reduced the number of 2008 reassignments by approximately 850,000 LIS beneficiaries. This is significantly greater than the 200,000 reassignment reduction estimated for the policy proposed in the proposed rule. *Comment:* Many commenters expressed concerns about various features of the proposed policy and suggested clarifications or changes. Commenters asked CMS to describe the methodology for selecting participating sponsors and any contingencies. Commenters asked CMS to make the checkbox in the bid pricing tool
(BPT)where PDP Sponsors were to indicate whether the plan will participate in the second premium visible and unambiguous. Commenters also asked whether certification and attestation requirements should be amended. In addition, commenters suggested changes including limiting plans' financial losses by placing a cap on the amount by which the premium could be reduced for LIS beneficiaries and commented on the complexity of explaining the rule to beneficiaries. *Response:* We agree that the various features of the proposed rule would have needed clarification in the final rule. This final rule does not incorporate the option for PDP Sponsors to offer a reduced premium to full subsidy eligible individuals. The final rule takes a different approach and changes the weighting methodology used to calculate the low-income benchmark premium amount. This approach is relatively simple and transparent and does not raise the complexities of the dual premium policy in the proposed rule about which these commenters are concerned. *Comment:* Many commenters suggested that we continue with our de minimis policy, rather than adopt the policy in the proposed rule. *Response:* We believe that the methodology established in this final rule is a better approach to reducing reassignments than continuing with the de minimis policy as it directly addresses the benchmark disparities across regions. As stated in the proposed rule, we were concerned about an approach that permanently would employ a fixed dollar figure, and decided that a methodology under which the number is not known in advance would better preserve incentives for plans to submit a low bid. *Comment:* Many commenters suggested calculating the benchmark before applying Part C rebates to MA-PD premiums. CMS currently calculates the low-income benchmark premium amount using MA-PD premiums after Part C rebates have been applied. Calculating the benchmarks using MA-PD premiums before the application of rebates would increase the benchmark amounts in areas with high MA-PD penetration and in turn decrease the number of reassignments in these Part D regions, compared to the current regulation. Commenters argued that this is a better representation of the true drug cost for MA-PDs. Commenters believed that such an approach is permissible under the statute. *Response:* Section 1860D-14(b)(2) of the Act describes the calculation of the benchmark. The statute provides that for an MA-PD plan, CMS must use the weighted averages of the “portion of the MA monthly prescription drug beneficiary premium that is attributable to basic prescription drug benefits” to calculate the benchmark for each region. The Act states that the term “MA monthly prescription drug beneficiary premium” means, “the base beneficiary premium * * * as adjusted * * *, less the amount of rebate credited toward such amount * * *” CMS interprets the phrase “portion of the MA monthly prescription drug beneficiary premium that is attributable to basic prescription drug benefits” for an MA-PD plan to mean the base beneficiary premium adjusted for the difference between the bid and benchmark less the rebates. Therefore, we do not believe it is permissible under the statute to calculate the benchmarks with MA-PD premiums before the application of rebates. However, this regulation will have a comparable effect on LIS reassignments to calculating the benchmarks using the MA-PD premiums that have not been reduced by rebates, and hence produces the outcome recommended by the commenters. *Comment:* Some commenters supported our alternative of allowing PDPs to waive the difference between the premium and the benchmark for full subsidy eligible beneficiaries. Commenters believed that CMS overestimated the impact this would have on bids as plans would be motivated to keep bids low in order to receive new auto-assignments. *Response:* We continue to believe that this option would have a negative impact on bid competition and bid integrity. As stated in the proposed rule, we did not choose this approach for two reasons. First, if the difference between the two amounts were too great, this would produce a significant disparity between the revenue needs assumed in the bid, and the revenue that would be received under the reduced premium, and undermine the integrity of the bid process. More importantly, if a PDP sponsor knew that it could be assured of reducing its premium for LIS-eligible individuals to the LIS amount no matter how much the premium produced by its bid exceeded this amount, this would greatly reduce existing incentives to bid as low as possible. In response to the commenters' argument, we do not believe new auto-assignees would be enough incentive to keep bids low. *Comment:* Many commenters did not support the alternative in which CMS would change the current reassignment process so that beneficiaries would be informed of plans that offer a zero premium for full-subsidy eligible beneficiaries but would have to take action to change to such a plan. Commenters believed that based on their experience, placing the burden on beneficiaries to make the change would result in beneficiaries remaining in plans they cannot afford and would increase premium collection problems. Two commenters believed that CMS should implement this alternative, because it would be easier to address non-payment of premium issues than the issues with continuity of care that come with reassignment. *Response:* We agree with the commenters who opposed the alternative for the reasons stated in our proposed rule. We are concerned about charging beneficiaries a premium without them electing to pay it and the potential financial hardship for individual beneficiaries. *Comment:* Several commenters suggested changes to the reassignment process, such as reassigning on other than a random basis, extending reassignment to people who have elected a plan with no premium and improvements to the premium information provided to choosers. One commenter asked CMS to review formularies to ensure they do not discourage access for vulnerable beneficiaries. *Response:* We do not believe these changes would be appropriate. Congress has favored random assignment by specifying it in the case of initial assignment. We believe that it is appropriate to extend this to re-assignment. It is not clear what the commenter means by reassigning people who have elected a plan with no premium, since they would have made an affirmative choice that we believe should be respected. We also believe that the information currently provided to beneficiaries on their choices is appropriate. Finally, we believe that beneficiaries are in the best position to make plan choices based on plan formularies. *Comment:* One commenter was concerned that the regulation would not come out in time for plans to use the information to model their bids. *Response:* We agree that Part D sponsors need to know how the LIS benchmarks will be calculated in order to prepare their Part D bids. Therefore, we are releasing this final rule before April 7, 2008, which is the beginning of the formal bid preparation period for 2009. On April 7, 2008, CMS will release all other final Part D payment policy information for 2009 as part of the Announcement of CY 2009 Medicare Advantage Capitation Rates and Medicare Advantage and Part D Payment Policies. This document is released annually by statute on the first Monday in April. With the release of the Rate Announcement and the publication of this final rule, Part D sponsors will have all the information on Part D payment policies that is needed from CMS to prepare their 2009 bids. III. Provisions of the Final Regulations As noted above, we believe that the statute can reasonably be interpreted to permit us to weight the premiums used for the benchmark calculation by total LIS enrollment for each plan. The calculation of the benchmarks is described in section 1860-14(b)(2) of the Act. The statute provides that we must take the “weighted average” of the premium amounts described to calculate the benchmarks. The term “weighted average,” however, is not definitively defined. The statutory language reads as follows:
(2)LOW-INCOME BENCHMARK PREMIUM AMOUNT DEFINED.—
(A)IN GENERAL.—For purposes of this subsection, the term “low-income benchmark premium amount” means, with respect to a PDP region in which—
(i)All prescription drug plans are offered by the same PDP sponsor, the weighted average of the amounts described in (B)(i) for such plans; or
(ii)There are prescription drug plans offered by more than one PDP sponsor, the weighted average of amounts described in subparagraph
(B)for prescription drug plans and MA-PD plans described in section 1851(a)(2)(A)(i) offered in such region.
(B)PREMIUM AMOUNTS DESCRIBED.—The premium amounts described in this subparagraph are, in the case of—
(i)A prescription drug plan that is a basic prescription drug plan, the monthly beneficiary premium for such plan;
(ii)A prescription drug plan that provides alternative prescription drug coverage the actuarial value of which is greater than that of standard prescription drug coverage, the portion of the monthly beneficiary premium that is attributable to basic prescription drug coverage; and
(iii)An MA-PD plan, the portion of the MA monthly prescription drug beneficiary premium that is attributable to basic prescription drug benefits (described in section 1854(b)(2)(B)) * * * We historically have interpreted “weighted average” to mean an average based on the plan's share of total Part D enrollment. We believe that “weighted average” could also reasonably be interpreted to mean weighted based on the plan's share of LIS enrollment, particularly given that the benchmarks are applicable to LIS beneficiaries only. The revised interpretation requires a change in the regulation. Therefore, we are revising § 423.780(b)(2) to provide for the low-income benchmark premium amount for a PDP region to be a weighted average of the premium amounts described in § 423.780(b)(2)(ii). The weight for each PDP and MA-PD plan will be equal to a percentage. The numerator will be the number of Part D LIS eligible individuals enrolled in the plan in a reference month (as defined in § 422.258(c)(1)). The denominator will be equal to the total number of Part D LIS eligible individuals enrolled in all PDP and MA-PD plans (but not including PACE, private fee-for-service plans, or 1876 cost plans) in a PDP region in the reference month. We will include both partial and full-subsidy individuals in the weighting calculation. VI. Collection of Information Requirements This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995. V. Regulatory Impact Statement A. Overall Impact We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act
(RFA)(September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on Federalism, and the Congressional Review Act (5 U.S.C. 804(2)). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis
(RIA)must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule allows CMS to calculate the low-income premium benchmark amounts by weighting the premium amounts by total LIS enrollment for each plan in order to reduce the number of reassignments compared to the current regulatory framework. We believe this final rule will lead to additional Federal costs of approximately $90 million for calendar year
(CY)2009. The CY 2009 cost of $90 million represents our best estimate of the cost of the final rule. Generally, our best estimates reflect an equal likelihood of being too high or too low. The estimated cost over the next 10 fiscal years (2009 through 2018) is $1.68 billion. The year-by-year impacts in millions of dollars are shown in Table 1 below. The $90 million estimate above is for CY 2009. The table below summarizes the fiscal year
(FY)costs. Yearly growth is due to an estimated increase in the number of enrollees in future years and increasing drug trends that cause higher estimated bids in future years. Table 1.—Federal Costs for FY 2009 through FY 2018 Fiscal Year 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2009-2018 Estimated Costs (in millions) $60 $100 $120 $140 $150 $170 $190 $220 $250 $280 $1,680 This rule does reach the economic threshold of $100 million in the out-years and thus is considered a major rule, as outlined by Executive Order 12866. This cost is due to increased Federal premium subsidy payments, which are the result of generally increasing the low-income benchmarks. The higher benchmarks allow a greater number of low-income beneficiaries to remain in their current plan, rather than reassigning them to a lower cost plan. In each region, the low-income benchmark essentially functions as a ceiling for the Federal premium subsidy for low-income beneficiaries. That is, the Federal premium subsidy covers the full cost of the plan's basic Part D premium for a full-subsidy beneficiary, up to the low-income benchmark amount. Weighting based on each plan's share of LIS enrollment generally is expected to increase the low-income benchmarks. We estimated that, in 2008, if the low-income benchmarks had been calculated based on LIS enrollment weighting (rather than based on total Part D enrollment weighting), the benchmarks would have been higher in 27 of the 34 PDP regions. Generally, the higher the low-income benchmarks, the lower the number of LIS reassignments. This is because, under the higher benchmarks, more PDPs are likely to have premiums that are equal to or less than the low-income benchmark and, as a result, will be fully covered by the premium subsidy. Low-income subsidy beneficiaries are able to remain in these PDPs and are not reassigned to other lower-premium PDPs. We expect this rule will reduce the administrative costs for plan sponsors associated with the reassignment of LIS beneficiaries. These costs include the production of new member informational materials by the new plan, increased staffing of call centers to field beneficiary questions, and costs associated with implementing transition benefits for new enrollees. Although there is no quantifiable monetary value to CMS to reducing reassignments, we feel this benefit is important, as it will increase program stability and continuity of care. The rule supports pharmacy and formulary consistency for the beneficiary. Particularly in regions with high MA-PD penetration, this rule will reduce the year-to-year volatility in reassignments of LIS beneficiaries and will help avoid the disruption that is inherent anytime a beneficiary is switched from one plan to another. Based on the most recent bid results, we estimated that if the 2008 benchmarks had been calculated using LIS enrollment weighting, there would have been approximately 850,000 fewer reassignments than if the benchmarks had been calculated using total Part D enrollment weighting. Then we determined the impact of the revised benchmarks and reassignments on program payments throughout the projection period. We do not explicitly project reassignments in future years. The expectation is that the net effect of future reassignments will result in projected cost levels comparable to the results of the reassignments modeled on the most recent bid results. The cost estimate assumes full enrollment weighting based on LIS enrollment for the calculations of the low-income benchmark premium amounts. The estimate was developed by applying this rule against the 2008 bids and this impact was projected throughout the forecast period. The estimate does not anticipate any change in bidding strategies or outcomes but does include the effect on the level of administrative costs plan sponsors will include in their bids to account for their expected number of LIS beneficiary reassignments. The proposed rule estimated Federal savings of approximately $20 million per calendar year. However, the final rule estimates an additional $90 million in Federal costs for CY 2009. There are two reasons that the cost estimate has changed. First, the budget baseline has been updated since the issuance of the proposed rule. The Mid-Session Review baseline assumed the continuation of the $1 de minimis policy; the President's 2009 Budget baseline does not. Because of the change in assumptions about the de minimis policy, even if we had stayed with the five zero-premium organization policy in the proposed rule, the cost of the final rule would have changed from savings of approximately $20 million per year to costs of approximately $10 million per year. Second, this final rule changes the weighting methodology used to calculate the low-income benchmark premium amount. As discussed in the rationale, CMS has changed the method for calculating the Federal premium subsidy for LIS beneficiaries so that the subsidy amount better reflects the premiums of plans in which LIS beneficiaries are enrolled. The final rule uses each plan's share of LIS enrollment, rather than each plan's share of total Part D enrollment, to weight each plan's premium. This change results in fewer reassignments than the proposed rule (approximately 670,000) and greater low-income premium subsidy costs. The relationship between reassignments and the premium subsidy is described above. The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6.5 million to $31.5 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this regulation will not have a significant economic impact on a substantial number of small entities. In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and the Secretary certifies, that this regulation will not have a significant impact on the operations of a substantial number of small rural hospitals. Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $130 million. This rule will have no consequential effect on State, local, or tribal governments in the aggregate, or by the private sector. Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable. B. Anticipated Effects We have estimated the effect this regulation will have on the number of reassignments, the number of zero-premium plans available to full-subsidy eligible individuals in each region, and bid incentives. This rule will reduce the number of reassignments compared to the current regulatory framework. In 2008, under the provisions of the “Medicare Demonstration to Transition Enrollment of Low-Income Subsidy Beneficiaries”, approximately 1.19 million LIS beneficiaries were reassigned to new Part D organizations. We estimated that if the 2008 benchmarks had been calculated under the current regulation (that is, full enrollment weighted using all enrollees), the number of LIS reassignments would have been 2.18 million. Under the policy in the proposed rule, the number of reassignments would have declined by approximately 200,000 (compared to the current regulation) to 2.0 million. We estimate that, if the 2008 benchmarks had been calculated using the LIS weighting methodology in this final rule, the benchmarks would have been higher in 27 of the 34 regions and the number of reassignments would have been 1.33 million—approximately 850,000 lower than under the current regulation. We estimate that this final rule, if implemented in 2008, would have reduced the benchmarks slightly in seven regions as compared to the current regulation. These regions tend to have low MA-PD penetration and a concentration of LIS beneficiaries in PDPs with relatively low premiums. The amount of the benchmark reduction was typically less than $0.50. In 2008, these benchmark reductions would have increased reassignments in total by less than 50,000. The 1.33 million estimate noted above is net of these increased reassignments. We estimate that this final rule, if implemented in 2008, would have increased the number of zero premium organizations available to beneficiaries in 20 of the 34 PDP regions. This is somewhat lower than the number of regions where the benchmarks would have been higher (27), because some regions did not have any new plans that landed under the benchmark with the new calculation. In addition, in 2008, this regulation would have resulted in at least five zero-premium organizations in every Part D region with the exception of one region, which would have had four zero-premium organizations. This approach maintains a strong incentive to bid low to keep and possibly add LIS beneficiaries. Absent the rule, there may be a “winner take all” outcome in certain regions with one organization acquiring all of the LIS beneficiaries in the region. It is difficult to predict what will happen in the absence of this rule, but we expect some organizations will be induced to bid even lower while other organizations will give up on this population and bid higher. C. Alternatives Considered As stated in the “Background” section of this final rule, we considered allowing PDP Sponsors to reduce their premium to the subsidy amount after it was established for LIS-eligible individuals without regard to the amount of their premium. We also considered allowing plans with premiums under a fixed dollar amount to reduce their low-income premiums to the premium subsidy amount (de minimis). We determined, however, that these options would undermine the integrity and competitiveness of the bidding process. We also considered changing our approach to reassignment to an approach that would allow LIS-eligible individuals to be informed of zero-premium PDP options for full-subsidy eligibles, but would remain in their current plan, regardless of the premium, if they take no action. Beneficiary advocacy groups were concerned about beneficiaries being charged a premium without electing to pay it. We also considered changing the regulation to calculate the benchmarks using MA-PD premiums before they have been reduced by Part C rebates. That approach, however, is not permitted under the statute. Finally, we considered the policy in the proposed rule itself, which was an option for PDP Sponsors in regions with less than five zero-premium PDPs to offer a separate prescription drug premium amount for full subsidy eligible individuals subject to certain conditions. In response to comments received on the proposed rule, we determined that this approach did not address the reassignment issue as effectively as the LIS benchmark weighting approach recommended by commenters. D. Accounting Statement As required by OMB Circular A-4 (available at *http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf* ), in Table 2 below, we have prepared an accounting statement showing the classification of the expenditures associated with the provisions of this final rule. This table provides our best estimate of the cost associated due to increased Federal low-income premium subsidy payments, which are primarily the result of allowing a greater number of low-income beneficiaries to remain in their current plan, rather than reassigning them to a lower cost plan. All expenditures are classified as costs to the Federal Government. Table 2.—Accounting Statement: Classification of Estimated Expenditures for the Modification to the Weighting Methodology Used To Calculate the Low-Income Benchmark Amount, Final Rule [$ Millions] Category: Monetized costs Costs Single Year CY 2009 $90 Annualized Monetized Costs Using 7% Discount Rate FY 2009-FY 2018 155.6 Annualized Monetized Costs Using 3% Discount Rate FY 2009-FY 2018 162.6 Undiscounted Cumulative Costs—FY 2009-FY 2018 1,680 Costs reflect transfers from the Federal Government to Health Plans. E. Conclusion This rule is estimated to result in an increased Federal cost of $90 million in CY 2009 and $1.68 billion over the next 10 fiscal years (2009 through 2018). As explained above, these costs are primarily due to an increase in low-income premium subsidy payments. This rule will not have a significant economic impact on a substantial number of small entities, so we are not preparing an analysis for the RFA. In addition, the regulation will not have a significant impact on the operations of a substantial number of small rural hospitals, so we are not preparing an analysis for section 1102(b) of the Act. The analysis above, together with the preamble, provides a Regulatory Impact Analysis as it qualifies as a major rule under Executive Order 12866. In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget. List of Subjects in 42 CFR Part 423 Administrative practice and procedure, Emergency medical services, Health facilities, Health maintenance organizations (HMO), Medicare, Penalties, Privacy, Reporting and recordkeeping. For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR chapter IV as set forth below: PART 423—VOLUNTARY MEDICARE PRESCRIPTION DRUG BENEFIT 1. The authority citation for part 423 continues to read as follows: Authority: Secs. 1102, 1860D-1 through 1860D-42, and 1871 of the Social Security Act (42 U.S.C. 1302, 1395w-101 through 1395w-152, and 1395hh). Subpart P—Premium and Cost-Sharing Subsidies for Low-Income Individuals 2. Amend § 423.780 by revising paragraph (b)(2)(i) to read as follows: § 423.780 Premium subsidy.
(b)* * *
(2)* * *
(i)The low-income benchmark premium amount for a PDP region is a weighted average of the premium amounts described in paragraph (b)(2)(ii) of this section, with the weight for each PDP and MA-PD plan equal to a percentage, the numerator being equal to the number of Part D low-income subsidy eligible individuals enrolled in the plan in the reference month (as defined in § 422.258(c)(1) of this chapter) and the denominator equal to the total number of Part D low-income subsidy eligible individuals enrolled in all PDP and MA-PD plans (but not including PACE, private fee-for-service plans or 1876 cost plans) in a PDP region in the reference month. (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program) Dated: March 20, 2008. Kerry Weems, Acting Administrator, Centers for Medicare & Medicaid Services. March 27, 2008. Michael O. Leavitt, Secretary. [FR Doc. 08-1088 Filed 3-31-08; 4 pm]
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- Conspiracy to defraud the Government with respect to claims§ 286
- Rules and regulations§ 7805
- Rule making§ 553
- Definitions§ 601
- Establishment, functions, and activities§ 272
- Purposes§ 3501
- SHORT TITLE.§ 801
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Congressional findings and declaration of purpose§ 7401
- Standards of performance for new stationary sources§ 7411
- Hazardous air pollutants§ 7412
- Authorized State hazardous waste programs§ 6926
- Influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member§ 115
- Authorities of Administrator§ 6912
- Rules and regulations; impact analyses of Medicare and Medicaid rules and regulations on small rural hospitals§ 1302
CFR
- Applicability.§ 71.1
- Interest, penalties, and administrative costs.§ 901.9
- Collection by administrative offset.§ 901.3
- Scope and application.§ 903.1
- Partial delegation of administrative authority to a Tribe.§ 49.122
- Federally-promulgated regulations and Federal implementation plans.§ 49.10590
- Contents of implementation plan.§ 49.10586
40 references not yet in our index
- 5 CFR 1201
- 5 CFR 1201.28
- 5 CFR 1201.72(d)
- 5 CFR 1201.28(g)
- 5 CFR 1201.72(c)
- 5 CFR 1201.73
- 5 CFR 1201.73(e)(1)
- 14 CFR 71
- 14 CFR 97
- 1 CFR 51
- 22 CFR 309
- 31 USC 3701-3719
- 31 USC 3720A
- 31 CFR 285
- 5 CFR 550
- 49 CFR 32
- 5 CFR 550.1103
- 31 CFR 902
- 31 CFR 903.1-903
- 26 USC 6050P
- 26 CFR 1.6050
- 26 CFR 1
- T.D. 9383
- 36 CFR 1253
- 40 CFR 49
- 49 CFR 49.10590
- Pub. L. 104-4
- 40 CFR 60
- 40 CFR 63
- 40 CFR 271
- 40 CFR 271.21
- 40 CFR 261.5
- 40 CFR 262.21
- 40 CFR 263
- 40 CFR 263.20(g)(4)
- 40 CFR 264.71(a)(3)
- 40 CFR 265.71(a)(3)
- 40 CFR 272
- Pub. L. 96-354
- 42 CFR 423
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