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Code · REGISTER · 2008-04-28 · Internal Revenue Service (IRS), Treasury · Proposed Rules

Proposed Rules. Notice of proposed rulemaking and withdrawal of notice of proposed rulemaking

40,668 words·~185 min read·/register/2008/04/28/08-1191

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

BILLING CODE 4160-01-S DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 301 [REG-208199-91] RIN 1545-BC55 Suspension of Running of Period of Limitations During a Proceeding to Enforce or Quash a Designated or Related Summons AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking and withdrawal of notice of proposed rulemaking. SUMMARY: This document contains proposed regulations regarding the use of designated summonses and related summonses and the effect on the period of limitations on assessment when a case is brought with respect to a designated or related summons.
This document also withdraws the previous proposed regulations published in the **Federal Register** on July 31, 2003 (68 FR 44905). These proposed regulations reflect changes to section 6503 of the Internal Revenue Code of 1986 made by the Omnibus Budget Reconciliation Act of 1990 and the Small Business Job Protection Act of 1996. These regulations affect corporate taxpayers that are examined under the coordinated issue case
(CIC)program and are served with designated or related summonses. These regulations also affect third parties that are served with designated or related summonses for information pertaining to the corporate examination. DATES: Written or electronic comments and requests for a public hearing must be received by July 28, 2008. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-208199-91), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Alternatively, submissions may be hand delivered between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-208199-91), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Comments may also be submitted electronically to the Federal eRulemaking Portal at *http://www.regulations.gov* (IRS REG-208199-91). FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Elizabeth Rawlins,
(202)622-3630; concerning submissions of comments, Richard Hurst,
(202)622-7180 or *Richard.A.Hurst@IRSCounsel.Treas.Gov* (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background This document contains proposed regulations amending the Procedure and Administration regulations (26 CFR part 301) under section 6503. Section 11311 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508, 104 Stat. 1388) amended section 6503(k) to suspend the period of limitations on assessment when a case is brought with respect to a designated or related summons. Section 6503(k) was redesignated as section 6503(j) by section 1702(h)(17)(A) of the Small Business Job Protection Act of 1996 (Pub. L. 104-188, 110 Stat. 1874). Proposed regulations under section 6503(j) were previously published in the **Federal Register** on July 31, 2003 (68 FR 44905) (the 2003 proposed regulations). The 2003 proposed regulations contained a procedure for determining the date of compliance with a designated or related summons issued with respect to a taxpayer whose statute of limitations on assessment was suspended under section 6503(j) because a court proceeding was brought. No comments were received with respect to this procedure or any other aspect of the 2003 proposed regulations, and no hearing was requested or held. The IRS and the Treasury Department have determined that, in the interest of effective tax administration, the procedure in the 2003 proposed regulations is not warranted. Instead, the IRS intends to create procedures by which taxpayers can inquire about the suspension of their periods of limitations under section 6503(j), including the date of compliance with the summons, and to publish these procedures in the Internal Revenue Manual. In addition, the IRS has established administrative procedures in the Internal Revenue Manual that ensure substantial IRS executive involvement and oversight of any designated and related summons issued. Additionally, § 301.6503(j)-1(c)(1)(i) of these proposed regulations requires that any designated summons be reviewed by the IRS Division Commissioner and Division Counsel of the Office of Chief Counsel before it is issued. Accordingly, the 2003 proposed regulations are withdrawn. Explanation of Provisions These proposed regulations generally provide that the period of limitations on assessment provided for in section 6501 is suspended with respect to any return of tax by a corporation that is the subject of a designated or related summons if a court proceeding to enforce or quash is instituted with respect to that summons. Designated Summonses and Related Summonses A designated summons is a summons issued to determine the amount of any internal revenue tax of a corporation for which a return was filed if certain additional requirements are satisfied. A designated summons may only be issued to a corporation (or any other person to whom the corporation has transferred records) if the corporation is being examined under the IRS's coordinated examination program or “any successor program.” The existing successor program to the coordinated examination program is the coordinated issue case
(CIC)program. Section 6503(j)(2)(A)(i) requires that the issuance of the summons be preceded by a review by the regional counsel of the Office of Chief Counsel for the region in which the examination of the corporation is being conducted. The office of regional counsel was eliminated by the IRS reorganization implemented pursuant to the IRS Reform and Restructuring Act of 1998. Because the office of regional counsel no longer exists, these proposed regulations provide that the review must by completed by the Division Commissioner and the Division Counsel of the Office of Chief Counsel (or their successors) for the organizations that have jurisdiction over the corporation whose liability is the subject of the summons. The summons also must be issued at least 60 days before the day on which the statute of limitations on assessment under section 6501 would otherwise expire. Finally, the summons must clearly state that it is a designated summons for purposes of section 6503(j). A related summons is any other summons that is issued with respect to the same tax return of the corporation as a designated summons and is issued during the 30-day period that begins on the date the designated summons is issued. Suspension of Period of Limitations on Assessment Section 6503(j)(1) suspends the period of limitations on assessment under section 6501 for the applicable tax period when a court proceeding is brought with respect to a designated or related summons. For purposes of these proposed regulations, a court proceeding is a proceeding brought in a United States district court either to quash a designated or related summons under section 7609(b)(2) or to enforce a designated or related summons under section 7604. The court proceeding must be brought within the otherwise applicable period of limitations in order to suspend that period under section 6503(j). The proposed regulations provide that the suspension begins on the day that a court proceeding is brought and continues until there is a final resolution as to the summoned party's response to the summons (discussed in the next section), plus an additional 120 days if a court requires any compliance with the summons at issue. If a court does not require any compliance, then the period of limitations on assessment resumes running on the day following the date of the final resolution and in no event shall expire before the 60th day following the date of final resolution. Final Resolution of a Summoned Party's Response to a Summons Under section 6503(j)(3)(B), the length of the suspension under section 6503(j) depends on when “final resolution” of a summoned party's response to the designated or related summons occurs. The term “final resolution” is not defined in the statute. The legislative history states that the term “final resolution” has the same meaning it has under section 7609(e)(2)(B), relating to third-party summonses. H.R. Conf. Rep. No. 101-964 (1990). Specifically, the conference report states that final resolution means that no court proceeding remains pending and that the summoned party has complied with the summons to the extent required by a court. Accordingly, the proposed regulations provide that final resolution occurs when no court proceeding remains pending and the summoned party complies with the summons to the extent required by the court. If the summoned party has complied with the summons to the extent required by the court but there still remains time to appeal that order, final resolution occurs when all appeals have been either disposed of or the period in which an appeal may be taken or a request for further review may be made has expired. If all appeal periods have expired but the summoned party has not complied with the summons to the extent required by the court, the proposed regulations provide that final resolution does not occur until the summoned party has complied with the summons to the extent required by the court. Whether a party has complied with the terms of the summons as enforced by a court cannot be determined until the completeness of the materials produced and the testimony given has been evaluated. The IRS intends to create administrative procedures by which the taxpayer can inquire about the suspension of its period of limitations under section 6503(j) and to publish these procedures in the Internal Revenue Manual. In cases in which a court wholly denies enforcement or orders that the summons in its entirety be quashed, the date of compliance with the court's order is treated as occurring on the date when all appeals are disposed of or when all appeal periods expire. In cases in which a court orders the summons enforced, in whole or in part, the determination of whether there has been full compliance will be made within a reasonable time after the later of the giving of all testimony or the production of all records required by the order. What constitutes a reasonable time will depend on the volume and complexity of the records produced. If, following an enforcement order, collateral proceedings are brought challenging whether the production made by the summoned party fully satisfied the court order and whether sanctions should be imposed against the summoned party for a failing to do so, the suspension of the periods of limitations shall continue until the order enforcing any part of the summons is fully complied with and the decision in the collateral proceeding becomes final. A decision in a collateral proceeding becomes final when all appeals are disposed of or when the period for appeal or further review has expired. Other Rules These proposed regulations provide additional rules regarding the number of designated and related summonses that may be issued with respect to a return for any taxable period, the time within which a court proceeding must be brought to enforce or quash a designated or related summons, the computation of the suspension period in cases of multiple court proceedings, and the computation of the 60-day period for assessment when the last day falls on a weekend or holiday. The proposed regulations also address the relationship of the suspension period provided for in section 6503(j) with other suspension provisions in the Code. The proposed regulations provide that if a designated or related summons also could be subject to the suspension rules governing third-party summonses under section 7609(e), then the suspension rules in section 6503(j) govern. In addition, the proposed regulations provide that the section 6503(j) suspension period is independent of, and may run concurrently with, any other period of suspension, such as the suspension period for third-party summonses under section 7609(e) if a separate third-party summons also was issued in a case. Examples of these rules are contained in the proposed regulations. Proposed Effective Date These regulations are proposed to be applicable on the date final regulations are published in the **Federal Register** . Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation, and because the regulation does not impose a collection of information requirement on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f), this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Requests for a Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight
(8)copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by a person who timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the hearing will be published in the **Federal Register** . Drafting Information The principal author of these regulations is Elizabeth Rawlins of the Office of the Associate Chief Counsel, Procedure and Administration. Lists of Subjects in 26 CFR Part 301 Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements. Withdrawal of Proposed Regulations Accordingly, under the authority of 26 U.S.C. 7805, the notice of proposed rulemaking (REG-208199-91) that was published in the **Federal Register** on Thursday, July 31, 2003 (68 FR 44905) is withdrawn. Proposed Amendments to the Regulations Accordingly, 26 CFR part 301 is proposed to be amended as follows: PART 301—PROCEDURE AND ADMINISTRATION **Paragraph 1.** The authority citation for part 301 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2.** Section 301.6503(j)-1 is added to read as follows: § 301.6503(j)-1 Suspension of running of period of limitations; extension in case of designated and related summonses.
(a)*General rule.* The running of the applicable period of limitations on assessment provided for in section 6501 is suspended with respect to any return of tax by a corporation that is the subject of a designated or related summons if a court proceeding is instituted with respect to that summons.
(b)*Period of suspension.* The period of suspension is the time during which the running of the applicable period of limitations on assessment provided for in section 6501 is suspended under section 6503(j). If a court requires any compliance with a designated or related summons by ordering that any record, document, paper, object, or items be produced, or the testimony of any person be given, the period of suspension consists of the judicial enforcement period plus 120 days. If a court does not require any compliance with a designated or related summons, the period of suspension consists of the judicial enforcement period, and the period of limitations on assessment provided in section 6501 shall not expire before the 60th day after the close of the judicial enforcement period.
(c)*Definitions* —(1) A *designated summons* is a summons issued to a corporation (or to any other person to whom the corporation has transferred records) with respect to any return of tax by such corporation for a taxable period for which such corporation is being examined under the coordinated industry case program or any other successor to the coordinated examination program if—
(i)The Division Commissioner and the Division Counsel of the Office of Chief Counsel (or their successors) for the organizations that have jurisdiction over the corporation whose tax liability is the subject of the summons have reviewed the summons before it is issued;
(ii)The IRS issues the summons at least 60 days before the day the period prescribed in section 6501 for the assessment of tax expires (determined with regard to extensions); and
(iii)The summons states that it is a designated summons for purposes of section 6503(j).
(2)A *related summons* is any summons issued that—
(i)Relates to the same return of the corporation under examination as the designated summons; and
(ii)Is issued to any person, including the person to whom the designated summons was issued, during the 30-day period that begins on the day the designated summons is issued.
(3)The *judicial enforcement period* is the period that begins on the day on which a court proceeding is instituted with respect to a designated or related summons and ends on the day on which there is a final resolution as to the summoned person's response to that summons.
(4)*Court proceeding* —(i) *In general.* For purposes of this section, a *court proceeding* is a proceeding filed in a United States district court either to quash a designated or related summons under section 7609(b)(2) or to enforce a designated or related summons under section 7604. A court proceeding includes any collateral proceeding, such as a civil contempt proceeding.
(ii)*Date when proceeding is no longer pending.* A proceeding to quash or to enforce a designated or related summons is no longer pending when all appeals (including review by the Supreme Court) are disposed of or after the expiration of the period in which an appeal may be taken or a request for further review (including review by the Supreme Court) may be made. If, however, following an enforcement order, a collateral proceeding is brought challenging whether the testimony given or production made by the summoned party fully satisfied the court order and whether sanctions should be imposed against the summoned party for a failure to so testify or produce, the proceeding to quash or to enforce the summons shall include the time from which the proceeding to quash or to enforce the summons was brought until the decision in the collateral proceeding becomes final. The decision becomes final on the date when all appeals (including review by the Supreme Court) are disposed of or when all appeal periods or all periods for further review (including review by the Supreme Court) expire. A decision in a collateral proceeding becomes final when all appeals (including review by the Supreme Court) are disposed of or when all appeal periods or all periods for further review (including review by the Supreme Court) expire.
(5)*Compliance* —(i) *In general* . *Compliance* is the giving of testimony or the performance of an act or acts of production, or both, in response to a court order concerning the designated or related summons and the determination that the terms of the court order have been satisfied.
(ii)*Date compliance occurs* . Compliance with a court order that wholly denies enforcement of a designated or related summons is deemed to occur on the date when all appeals (including review by the Supreme Court) are disposed of or when the period in which an appeal may be taken or a request for further review (including review by the Supreme Court) may be made expires. Compliance with a court order that grants enforcement, in whole or in part, of a designated or related summons, occurs on the date it is determined that the testimony given, or the books, papers, records, or other data produced, or both, by the summoned party fully satisfy the court order concerning the summons. The determination of whether there has been full compliance will be made within a reasonable time, given the volume and complexity of the records produced, after the later of the giving of all testimony or the production of all records requested by the summons or required by any order enforcing any part of the summons. If, following an enforcement order, collateral proceedings are brought challenging whether the production made by the summoned party fully satisfied the court order and whether sanctions should be imposed against the summoned party for a failing to do so, the suspension of the periods of limitations shall continue until the order enforcing any part of the summons is fully complied with and the decision in the collateral proceeding becomes final. A decision in a collateral proceeding becomes final when all appeals are disposed of, the period in which an appeal may be taken has expired or the period in which a request for further review may be made has expired.
(6)*Final resolution* occurs when the designated or related summons or any order enforcing any part of the designated or related summons is fully complied with and all appeals or requests for further review are disposed of, the period in which an appeal may be taken has expired or the period in which a request for further review may be made has expired.
(d)*Special rules* —(1) *Number of summonses that may be issued* —(i) *Designated summons* . Only one designated summons may be issued in connection with the examination of a specific taxable year or other period of a corporation. A designated summons may cover more than one year or other period of a corporation. The designated summons may require production of information that was previously sought in a summons (other than a designated summons) issued in the course of the examination of that particular corporation if that information was not previously produced.
(ii)*Related summonses* . There is no restriction on the number of related summonses that may be issued in connection with the examination of a corporation. As provided in paragraph (c)(2) of this section, however, a related summons must be issued within the 30-day period that begins on the date on which the designated summons to which it relates is issued and must relate to the same return as the designated summons. A related summons may request the same information as the designated summons.
(2)*Time within which court proceedings must be brought* . In order for the period of limitations on assessment to be suspended under section 6503(j), a court proceeding to enforce or to quash a designated or related summons must be instituted within the period of limitations on assessment provided in section 6501 that is otherwise applicable to the tax return.
(3)*Computation of suspension period if multiple court proceedings are instituted* . If multiple court proceedings are instituted to enforce or to quash a designated or one or more related summonses concerning the same tax return, the period of limitations on assessment is suspended beginning on the date the first court proceeding is brought. The suspension shall end on the date that is the latest date on which the judicial enforcement period, plus the 120-day or 60-day period (depending on whether the court requires any compliance) as provided in paragraph
(b)of this section, expires with respect to each summons.
(4)*Effect on other suspension periods* —(i) *In general* . Suspensions of the period of limitations under section 6501 provided for under subsections 7609(e)(1) and (e)(2) do not apply to any summons that is issued pursuant to section 6503(j). The suspension under section 6503(j) of the running of the period of limitations on assessment under section 6501 is independent of, and may run concurrent with, any other suspension of the period of limitations on assessment that applies to the tax return to which the designated or related summons relates.
(ii)*Examples* . The rules of paragraph (d)(4)(i) of this section are illustrated by the following examples: Example 1. The period of limitations on assessment against Corporation P, a calendar year taxpayer, for its 2007 return is scheduled to end on March 17, 2011. (Ordinarily, Corporation P's returns are filed on March 15th of the following year, but March 15, 2008 was a Saturday, and Corporation P timely filed its return on the subsequent Monday, March 17, 2008, making March 17, 2011 the last day of the period of limitations on assessment for Corporation P's 2007 tax year.) On January 4, 2011, a designated summons is issued to Corporation P concerning its 2007 return. On March 3, 2011 (14 days before the period of limitations on assessment would otherwise expire with respect to Corporation P's 2007 return), a court proceeding is brought to enforce the designated summons issued to Corporation P. On June 6, 2011, the court orders Corporation P to comply with the designated summons. Corporation P does not appeal the court's order. On September 6, 2011, agents for Corporation P deliver material that they state are the records requested by the designated summons. On October 13, 2011, a final resolution to Corporation P's response to the designated summons occurs when it is determined that Corporation P has fully complied with the court's order. The suspension period applicable with respect to the designated summons issued to Corporation P consists of the judicial enforcement period (March 3, 2011 through October 13, 2011) and an additional 120-day period under section 6503(j)(1)(B), because the court required Corporation P to comply with the designated summons. Thus, the suspension period applicable with respect to the designated summons issued to Corporation P begins on March 3, 2011, and ends on February 10, 2012. Under the facts of this *Example 1* , the period of limitations on assessment against Corporation P further extends to February 24, 2012, to account for the additional 14 days that remained on the period of limitations on assessment under section 6501 when the suspension period under section 6503(j) began. Example 2. Assume the same facts set forth in *Example 1* , except that in addition to the issuance of the designated summons and related enforcement proceedings, on April 5, 2011, a summons concerning Corporation P's 2007 return is issued and served on individual A, a third party. This summons is not a related summons because it was not issued during the 30-day period that began on the date the designated summons was issued. The third-party summons served on individual A is subject to the notice requirements of section 7609(a). Final resolution of individual A's response to this summons does not occur until February 15, 2012. Because there is no final resolution of individual A's response to this summons by October 5, 2011, which is six months from the date of service of the summons, the period of limitations on assessment against Corporation P is suspended under section 7609(e)(2) to the date on which there is a final resolution to that response for the purposes of section 7609(e)(2). Moreover, because final resolution to the summons served on individual A does not occur until after February 10, 2012, the end of the suspension period for the designated summons, the period of limitations on assessment against Corporation P expires 14 days after the date that the final resolution as provided for in section 7609(e)(2) occurs with respect to the summons served on individual A.
(5)*Computation of 60-day period when last day of assessment period falls on a weekend or holiday.* For purposes of paragraph (c)(1)(ii) of this section, in determining whether a designated summons has been issued at least 60 days before the date on which the period of limitations on assessment prescribed in section 6501 expires, the provisions of section 7503 apply when the last day of the assessment period falls on a Saturday, Sunday, or legal holiday.
(e)*Effective/applicability date* . This section is applicable on the date the final regulations are published in the **Federal Register** . Kevin M. Brown, Deputy Commissioner for Services and Enforcement. [FR Doc. E8-9147 Filed 4-25-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Alcohol and Tobacco Tax and Trade Bureau 27 CFR Part 9 [Docket No. TTB-2008-0003; Notice No. 82] RIN 1513-AB51 Proposed Establishment of the Snipes Mountain Viticultural Area (2007R-300P) AGENCY: Alcohol and Tobacco Tax and Trade Bureau, Treasury. ACTION: Notice of proposed rulemaking. SUMMARY: The Alcohol and Tobacco Tax and Trade Bureau proposes to establish the 4,145-acre “Snipes Mountain” viticultural area in Yakima County, Washington. We designate viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. We invite comments on this proposed addition to our regulations. DATES: We must receive written comments on or before June 27, 2008. ADDRESSES: You may send comments on this notice to one of the following addresses: • *http://www.regulations.gov* (via the online comment form for this notice as posted within Docket No. TTB-2008-0003 on Regulations.gov, the Federal e-rulemaking portal); or • Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412. See the Public Participation section of this notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing. You may view copies of this notice, selected supporting materials, and any comments we receive about this proposal at *http://www.regulations.gov* . A direct link to the appropriate Regulations.gov docket is available under Notice No. 82 on the TTB Web site at *http://www.ttb.gov/wine/wine_rulemaking.shtml* . You also may view copies of this notice, all related petitions, maps or other supporting materials, and any comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. To make an appointment, call 202-927-2400. FOR FURTHER INFORMATION CONTACT: N.A. Sutton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 925 Lakeville St., No. 158, Petaluma, CA 94952; telephone 415-271-1254. SUPPLEMENTARY INFORMATION: Background on Viticultural Areas TTB Authority Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau
(TTB)administers the regulations promulgated under the FAA Act. Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas. Definition Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area. Requirements Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include— • Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition; • Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies; • Evidence relating to the geographic features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas; • A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey
(USGS)maps; and • A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked. Snipes Mountain Petition Mr. Todd Newhouse, of the Upland Winery in Outlook, Washington, submitted a petition proposing the establishment of the Snipes Mountain viticultural area on behalf of the grape growers in the Snipes Mountain area. The proposed viticultural area covers 4,145 acres, and currently has 535 acres of commercial vineyards. According to USGS maps that the petitioner provided, Snipes Mountain lies north of the Yakima River, between the towns of Granger and Sunnyside in Yakima County, Washington. [TTB notes that the proposed viticultural area lies entirely within the Yakima Valley viticultural area (27 CFR 9.69), which includes portions of Yakima and Benton Counties in central Washington, and also entirely within the larger Columbia Valley viticultural area (27 CFR 9.74), which includes portions of central Washington and north-central Oregon.] According to the petitioner, the principal distinguishing features of the proposed viticultural area are Snipes Mountain itself, a singular landform rising from the floor of the Yakima Valley, and its comparatively unique, rocky soils. The proposed viticultural area also includes Harrison Hill, east of Snipes Mountain. Harrison Hill has similar soils, and its topography is contiguous with the elevation lines of Snipes Mountain. Name Evidence The petition explains that in the late 1850s, Ben Snipes built a house at the base of a mountain, which later became known as Snipes Mountain, and developed an expansive cattle operation (see also “The Pacific Northwesterner,” Fall 1959, reprinted as Essay 7265 on *http://www.HistoryLink.org* ). Since the early 1900s, the Snipes Mountain Irrigation District has provided water to the region. According to the USGS Sunnyside quadrangle map, the main water canal, the Snipes Mountain Lateral, lies to the north of Snipes Mountain. The USGS Granger and Sunnyside quadrangle maps identify Snipes Mountain as an elevated landform between the Yakima River to the south and a single railroad line and Interstate 82 to the north. Boundary Evidence The petitioner states that growers began establishing vineyards on Snipes Mountain and adjacent Harrison Hill between 1914 and 1917 (see “The Wine Project: Washington State's Winemaking History” by R. Irvine and W. Clore, Sketch Publications, 1997). The second oldest cabernet sauvignon vines in Washington State have been growing for some 40 years in vineyards on Harrison Hill. These vines have been producing award-winning wines for 15 years. On Snipes Mountain, the Upland Winery, which operated from 1934 to 1972, is being reestablished as a historic winery. Within the current 535 acres of vineyards in the proposed viticultural area, a total of 25 varietals are grown. According to the provided written boundary description and USGS maps, the elevation of the proposed Snipes Mountain viticultural area boundary line designating the lower end of the AVA runs from 750 to 820 feet around the base of the mountain, and the AVA continues up the mountain and encompasses its peak. The USGS maps show that the proposed viticultural area is on elevated terrain, and comprises vineyards, orchards, roads, trails, a reservoir, intermittent streams, gravel pits, buildings, and a winery. The proposed viticultural area is surrounded by the generally flat Yakima Valley terrain that, in areas, dips to approximately 700 feet in elevation. Two sections of the Yakima River with elevations of 670 feet flow adjacent to the southwest portion of the proposed AVA boundary line. The petitioner notes that at elevations below the 750-foot contour line the valley is flatter and has places, such as ponds and other cold air sinks, which are unsuitable for viticulture. According to the written boundary description and USGS maps, Harrison Hill borders Snipes Mountain in the eastern portion of the proposed Snipes Mountain viticultural area. According to the petitioner, the soils on Harrison Hill are similar to the dominant soils in the rest of the proposed viticultural area. The petitioner explains that the 132 acres on the south-facing slopes of Harrison Hill are suitable for successful viticulture and claims that the vineyards on Harrison Hill “are the most important acres we grow.” Distinguishing Features According to the petitioner, the distinguishing features of the proposed Snipes Mountain viticultural area include an elevated topography that is steep in places and a geologic history that contrasts with that of the surrounding Yakima Valley area. According to USGS and digital maps provided with the petition, Snipes Mountain stands alone in the center of the wide Yakima Valley like the crown of a brimmed hat. The petitioner notes that the Snipes Mountain region comprises the Ellensburg Formation. This formation consists of alluvial outwash, the parent material of the unique soils in the Snipes Mountain region. Topography The petitioner describes Snipes Mountain and adjacent Harrison Hill as rising visibly from the Yakima Valley floor. The USGS Sunnyside and Granger maps show that the 1,301-foot pinnacle of Snipes Mountain contrasts with the 680- to 780-foot elevations of the surrounding valley floor. The petitioner notes that about a third of the Yakima Valley viticultural area is level, and cites the digital elevation maps of the Yakima Valley and Snipes Mountain from Washington State 10m Digital Elevation Model data. The petitioner explains that the north side slopes of Snipes Mountain gradually increase in elevation but the south side slopes are steeper. As shown on USGS maps, the south side slopes increase from 850 to 1,200 feet in elevation over a short distance. According to the petitioner, these steeper slopes are suited to viticulture because they have good air drainage, which helps to prevent spring and fall frost damage to the plants in the vineyards. Geology and Soils According to the Washington Division of Geology and Earth Resources, the geology of central Washington consists mainly of a volcanic basalt mantle 10 to 15 million years old (“Late Cenozoic Structure and Stratigraphy of South-Central Washington,” by S.P. Reidel, N.P. Campbell, K.R. Fecht, and K.A. Lindsey, Bulletin 80, pp. 159-180, 1994). Further study shows that subsequent alluvial events covered portions of the Yakima Valley, creating the Ellensburg Formation (“Sedimentology of proximal volcaniclastics dispersed across an active foldbelt: Ellensburg formation (late Miocene), central Washington,” by G.A. Smith, Sedimentology 35: 953-997, 1988). The Ellensburg Formation consists of a conglomerate of round, river-washed rocks and coarse sediment; tectonic uplift created Snipes Mountain (Reidel *et al.* ). The petitioner describes the soils in the proposed viticultural area based on the Soil Survey of the Yakima County Area, Washington (U.S. Department of Agriculture, Soil Conservation Service, 1985). The petitioner also provides a table that compares soil series in the established Yakima Valley viticultural area with those in the proposed Snipes Mountain viticultural area. The comparison is based on parent material, and shows the soils that resulted from differing geological events in each region. The petitioner explains that almost all soils on Snipes Mountain were deposited by an ancient flood and are now in a dry environment. The soils are older, have more rock fragments, and are drier than the soils elsewhere in the Yakima Valley region. One third of the soils in the Yakima Valley viticultural area formed in alluvium and 30 percent of the soils formed in loess over lacustrine deposits. In contrast, within the proposed Snipes Mountain viticultural area only 3.32 percent of the soils are alluvial soils. These soils are of small extent because tectonic uplift exposed the southwest face of Snipes Mountain, lifting it above the influence of additional alluvial deposits. Warden soils formed in loess over lacustrine deposits, and these soils cover 53 percent of the proposed Snipes Mountain viticultural area. Typically, these soils are on the north- and northeast-facing slopes, in positions where the parent material was in place prior to tectonic uplift. The Harwood-Burke-Wiehl soils comprise 13.6 percent of the soils in the proposed viticultural area, compared to less than 1 percent of the entire Yakima Valley viticultural area. On Snipes Mountain 82 percent of the soils are classified as Aridisols. Aridisols are low in organic matter and are in generally dry areas. In the Yakima Valley 47 percent of the soils are classified as Aridisols, but 43 percent are classified as Mollisols. Mollisols have a deep, dark surface horizon with a high content of organic matter. Typically, they are low lying and near ground water that supplies moisture to plants, which ultimately increase the accumulation of organic matter. According to the petitioner, vineyards on the south-facing slopes of Harrison Hill have produced highly valued grapes. The soils on Harrison Hill and Snipes Mountain are similar. The steeper, south-facing slopes of Snipes Mountain provide excellent air drainage to protect the grapevines, making them less susceptible to spring and fall frost damage. TTB Determination TTB concludes that this petition to establish the 4,145-acre Snipes Mountain viticultural area merits consideration and public comment, as invited in this notice. Boundary Description See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice. Maps The petitioner provided the required maps, and we list them below in the proposed regulatory text. Impact on Current Wine Labels Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we establish this proposed viticultural area, its name, “Snipes Mountain,” will be recognized as a name of viticultural significance under 27 CFR 4.39(i)(3). Consequently, wine bottlers using “Snipes Mountain” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin. On the other hand, we do not believe that any single part of the proposed viticultural area name standing alone, such as “Snipes” would have viticultural significance if the new area is established. Accordingly, the proposed part 9 regulatory text set forth in this document specifies only the full “Snipes Mountain” name as a term of viticultural significance for purposes of part 4 of the TTB regulations. For a wine to be eligible to use a viticultural area name or other term of viticultural significance as an appellation of origin or in a brand name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name or other term of viticultural significance appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term of viticultural significance appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a previously approved label uses the name “Snipes Mountain” for a wine that does not meet the 85 percent standard, the previously approved label will be subject to revocation, upon the effective date of the approval of the Snipes Mountain viticultural area. Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details. Public Participation Comments Invited We invite comments from interested members of the public on whether we should establish the proposed viticultural area. We are also interested in receiving comments on the sufficiency and accuracy of the name, boundary, climatic, and other required information submitted in support of the petition. The easternmost portion of the proposed boundary line includes the south side of the adjacent Harrison Hill, which the petitioner describes as having important vineyards. We are especially interested in receiving any comments on the appropriateness of our including the southern part of Harrison Hill in the proposed Snipes Mountain viticultural area. We are also particularly interested in any comments on whether the evidence regarding name and distinguishing geographical features is sufficient to warrant the establishment of this new viticultural area within the existing Yakima Valley and Columbia Valley viticultural areas. Please provide any available specific information in support of your comments. Because of the potential impact of the establishment of the proposed Snipes Mountain viticultural area on wine labels that include the words “Snipes Mountain” as discussed above under Impact on Current Wine Labels, we are particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. We are also interested in receiving suggestions for ways to avoid any conflicts, for example by adopting a modified or different name for the viticultural area. Although TTB believes that only the full “Snipes Mountain” name should be considered to have viticultural significance upon establishment of the proposed new viticultural area, we also invite comments from those who believe that “Snipes” standing alone would have viticultural significance upon establishment of the area. Comments in this regard should include documentation or other information supporting the conclusion that use of “Snipes” on a wine label could cause consumers and vintners to attribute to the wine in question the quality, reputation, or other characteristic of wine made from grapes grown in the proposed Snipes Mountain viticultural area. Submitting Comments You may submit comments on this notice by using one of the following two methods: • *Federal e-Rulemaking Portal:* You may send comments via the online comment form posted with this notice within Docket No. TTB-2008-0003 on “Regulations.gov,” the Federal e-rulemaking portal, at *http://www.regulations.gov.* A direct link to that docket is available under Notice No. 82 on the TTB Web site at *http://www.ttb.gov/wine/wine_rulemaking.shtml.* Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.” • *Mail:* You may send written comments to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412. Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 82 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals. If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via *http://www.regulations.gov,* please enter the entity's name in the “Organization” blank of the comment form. If you comment via mail, please submit your entity's comment on letterhead. You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing. Confidentiality All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure. Public Disclosure We will post, and you may view, copies of this notice, selected supporting materials, and any online or mailed comments we receive about this proposal within Docket No. TTB-2008-0003 on the Federal e-rulemaking portal, Regulations.gov, at *http://www.regulations.gov.* A direct link to this docket is available on the TTB Web site at *http://www.ttb.gov/wine/wine_rulemaking.shtml* under Notice No. 82. You may also reach the relevant docket through the Regulations.gov search page at *http://www.regulations.gov.* For instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.” All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. We may omit voluminous attachments or material that we consider unsuitable for posting. You also may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5 x 11-inch page. Contact our information specialist at the above address or by telephone at 202-927-2400 to schedule an appointment or to request copies of comments or other materials. Regulatory Flexibility Act We certify that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required. Executive Order 12866 This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment. Drafting Information N.A. Sutton of the Regulations and Rulings Division drafted this notice. List of Subjects in 27 CFR Part 9 Wine. Proposed Regulatory Amendment For the reasons discussed in the preamble, we propose to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows: PART 9—AMERICAN VITICULTURAL AREAS 1. The authority citation for part 9 continues to read as follows: Authority: 27 U.S.C. 205. Subpart C—Approved American Viticultural Areas 2. Amend subpart C by adding § 9._ to read as follows: § 9._ Snipes Mountain.
(a)*Name.* The name of the viticultural area described in this section is “Snipes Mountain”. For purposes of part 4 of this chapter, “Snipes Mountain” is a term of viticultural significance.
(b)*Approved maps.* The two United Stages Geological Survey 1:24,000 scale topographic maps used to determine the boundary of the Snipes Mountain viticultural area are titled:
(1)Sunnyside, Wash., 1965, photorevised 1978; and
(2)Granger, Wash., 1965.
(c)*Boundary.* The Snipes Mountain viticultural area is located in Yakima County, Washington. The boundary of the Snipes Mountain viticultural area is as described below:
(1)The beginning point is on the Sunnyside map at the intersection of the section 34 east boundary line and the Pipeline, between Alexander Road and South Hill Road, to the southwest of Sunnyside, T10N, R22E. From the beginning point, proceed straight south along the section 34 east boundary line, less than 0.1 mile, to its intersection with the 750-foot elevation line, T10N, R22E; then
(2)Proceed along the 750-foot elevation line first southeast, then generally west to its intersection with the section 31 west boundary line and the Union Pacific single railroad track along the west border of the map, T10N, R22E; then
(3)Proceed along the Union Pacific railroad line generally west-northwest (which closely follows the 760-foot elevation line) crossing onto the Granger map and continue to its intersection with the section 27 east boundary line, immediately northeast of BM 768, T10N, R21E; then
(4)Proceed straight south along the section 27 east boundary line less than 0.1 mile to its intersection with the 760-foot elevation line, T10N, R21E; then
(5)Proceed northwest along the meandering 760-foot elevation line to its intersection with the section 27 north boundary line, T10N, R21E; then
(6)Proceed straight north in a line approximately 0.1 mile to its intersection with the 820-foot elevation line, southeast of the claypits, section 22, T10N, R21E; then
(7)Proceed along the meandering 820-foot elevation line first northwest then east-southeast before reaching Granger, and then continuing eastward to its intersection with Nass Road, section 26, T10N, R21E; then
(8)Proceed generally east along the meandering 820-foot elevation line, crossing onto the Sunnyside map and continuing generally eastward to its intersection with section 34 north boundary line, T10N, R22E; then
(9)Proceed straight east along the north boundary line of sections 34 and 35 to its intersection with the 820-foot elevation line, T10N, R22E; then
(10)Proceed southwest along the 820-foot elevation to its intersection with the section 34 east boundary line, T10N, R22E; then
(11)Proceed straight south along the section 34 east boundary line 0.3 mile to the point of beginning. Signed: March 24, 2008. John J. Manfreda, Administrator. [FR Doc. E8-9172 Filed 4-25-08; 8:45 am] BILLING CODE 4810-31-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 916 [Docket No. OSM-2008-0001; SATS No. KS-024-FOR] Kansas Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Proposed rule; reopening and extension of public comment period on proposed amendment. SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of revisions to a previously proposed amendment to the Kansas regulatory program (Kansas program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The revisions concern newly promulgated Kansas Regulations. Kansas submitted these regulations at its own initiative to meet the requirements for its program to operate under Title IV and V of the Surface Mining Control and Reclamation Act and to make technical and editorial corrections to its program. This document gives the times and locations where the Kansas program and proposed amendment are available for your inspection and the comment period during which you may submit written comments on the revisions to the amendment. DATES: We will accept written comments on this amendment until 4 p.m., c.d.t., May 28, 2008. If requested, we will hold a public hearing on the amendment on May 23, 2008. We will accept requests to speak at a hearing until 4 p.m., c.d.t. on May 13, 2008. ADDRESSES: You may submit comments, identified by Docket No. OSM-2008-0001, by any of the following methods: • *Federal eRulemaking Portal:* The proposed rule has been assigned Docket ID: OSM-2008-0001. If you would like to submit comments through the Federal eRulemaking Portal, go to *www.regulations.gov* and do the following. Click on the “Advanced Docket Search” button on the right side of the screen. Type in the Docket ID OSM-2008-0001 and click the “Submit” button at the bottom of the page. The next screen will display the Docket Search Results for the rulemaking. If you click on OSM-2008-0001, you can view the proposed rule and submit a comment. You can also view supporting material and any comments submitted by others. • *Mail/Hand Delivery/Courier:* Submit your comments to Alfred L. Clayborne, Director, Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 1645 South 101 St. East Avenue, Tulsa, Oklahoma 74128. *Instructions:* For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* In addition to obtaining copies of documents at *www.regulations.gov* , information may also be obtained at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Tulsa Field Office: Alfred L. Clayborne, Director, Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 1645 South 101 St. East Avenue, Tulsa, Oklahoma 74128-6547, Telephone:
(918)581-6430, E-mail: *aclayborne@osmre.gov.* In addition, you may review a copy of the amendment during regular business hours at the following location: Kansas Department of Health and Environment, Surface Mining Section, 4033 Parkview Drive, Frontenac, Kansas 66763, Telephone:
(316)231-8540. FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Director, Tulsa Field Office. Telephone:
(918)581-6430. E-mail: *aclayborne@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Kansas Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Kansas Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kansas program on January 21, 1981. You can find background information on the Kansas program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the January 21, 1981, **Federal Register** (46 FR 5892). You can also find later actions concerning the Kansas program and program amendments at 30 CFR 916.10, 916.12, 916.15, and 916.16. II. Description of the Proposed Amendment By letter dated November 19, 2007 (Administrative Record Nos. 626 and 627), Kansas sent us amendments to its program under SMCRA (30 U.S.C. 1201 *et seq.* ). Kansas sent the amendments in one package, identifying the Kansas 2006 Revegetation Success Guidelines as KS-024-FOR and the Normal Husbandry Practices as KS-025-FOR. We have combined both amendments under one docket number (Docket No. OSM-2008-0001). We announced receipt of the amendment in the January 23, 2008, **Federal Register** (73 FR 3894) and invited public comment on its adequacy. The public comment period closed February 22, 2008. Kansas submitted these amendments at their own initiative. During our review of the previous submitted proposed amendments (Kansas's 2006 Revegetation Success Guidelines and Normal Husbandry Practices, Administrative Record Nos. 626 and 627), we identified incorrectly cited regulation references. We notified Kansas of our concerns by telephone on February 7, 2008, (Administrative Record No. 626.08). Kansas, by email on February 7, 2008 (Administrative Record No. 626.06), sent us revisions to its proposed amendments for review under SMCRA (30 U.S.C. 1201 *et seq.* ). These revisions concern new promulgated Kansas Regulations ( *Kansas Department of Health and Environment Amended Permanent Regulation* ), which coincide with regulation citations used in its proposed 2006 Revegetation Success Guidelines and Normal Husbandry Practices for Surface-Mined Lands. Kansas's new regulations contain a substantial number of grammatical changes to update outdated language and codifications. Changes can be found in the following articles: Article 2—Meaning of Terms 47-2-75, Article 3—Application for Mining Permit 47-3-42, Article 4—Public Hearing 47-4-14a, Article 5—Civil Penalties 47-5-5a, Article 6—Permit Review 47-6-1, Article 6—Permit Review 47-6-2, Article 7—Coal Exploration 47-7-2, Article 8—Bonding Procedures 47-8-9, Article 9—Performance Standards 47-9-1, Article 9—Performance Standards 47-9-4, Article 10—Underground Mining 47-10-1, Article 11—Small Operator Assistant Program 47-11-8, Article 12—Lands Unsuitable Surface Mining 47-12-4, Article 13—Training, Certification, and Responsibilities of Blasters and Operators 47-13-4, Article 14—Employee Financial Interests 47-14-7, Article 15—Inspection and Enforcement 47-15-1a, Article 16—Reclamation 47-16-9, Article 16—Reclamation 47-16-10, and Article 16—Reclamation 47-16-12. Kansas proposes more specific substantive revisions to its regulations in the following articles and sections: K.A.R. 47-3-42, Article 3—Application for Mining permit, (5)(a)(55): Kansas proposes to delete subsection
(d)of this article. K.A.R. 47-4-14a, Article 4—Public Hearing, document filing section (2)(c)(2): Kansas proposes to delete references to the Administrative Appeals Section of the Kansas Department of Health and Environment, Suite 400D, 109. SW 9th, Topeka, Kansas 66612-1215 and add the Office of Administrative Hearings, a division of the Kansas Department of Administration. K.A.R 47-4-14a, Article 4—Public Hearing section (d)(3)(A): Kansas proposes to delete the phrase, “a presiding officer shall be assigned by the department for the prehearing conference, exercising the same discretion as is provided by subsection (d)(2) concerning the selection of a presiding officer for a hearing.” K.A.R. 47-5-5a, Article 5—Civil Penalties (a): Kansas proposes to insert a new penalty table, change the dollar amount assessed for separate violations for each day, and add new language in section 47-5-5 (d)(1): Delinquent payment. K.A.R. 47-5-5, Article 5—Civil Penalties (b)(13): Kansas proposes to delete reference to the Administrative Appeals Coordinator, Administrative Appeals Section, Office of the Secretary, Kansas Department of Health and Environment, Mills Building, Suite 400D, 109 SW. 9th Street, Topeka, Kansas 66612-1215 and add the Office of Administrative Hearings, a division of the Kansas Department of Administration. III. Public Comment Procedures We are reopening the comment period on the proposed Kansas program amendment to provide you an opportunity to reconsider the adequacy of the amendment in light of the additional materials sent to us. Under the provisions of 30 CFR 732.17(h), we are requesting comments on whether the amendment satisfies the program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Kansas program. Written Comments Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES ). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Tulsa Field Office may not be logged in. Public Hearing If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. on May 13, 2008. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak, and others present in the audience who wish to speak, have been heard. Public Meeting If there is only limited interest in participating in a public hearing, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record. Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. IV. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget
(OMB)under Executive Order 12866. Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections
(a)and
(b)of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Kansas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Kansas program has no effect on federally-recognized Indian tribes. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is
(1)considered significant under Executive Order 12866, and
(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 *et seq.* ). Regulatory Flexibility Act The Department of the Interior 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.* ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a)Does not have an annual effect on the economy of $100 million;
(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and
(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 916 Intergovernmental relations, Surface mining, Underground mining. Dated: April 2, 2008. Bill Joseph, Acting Regional Director, Mid-Continent Region. [FR Doc. E8-9194 Filed 4-25-08; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 13 RIN 1024-AD69 National Park System Units in Alaska AGENCY: National Park Service, Interior. ACTION: Proposed rule. SUMMARY: The NPS is proposing to implement recent management decisions affecting Denali National Park and Preserve regarding backcountry management, climbing Mount McKinley, and off-road vehicle use for subsistence purposes. DATES: Comments must be received by June 27, 2008. ADDRESSES: You may submit your comments, identified by Regulatory Information Number 1024-AD69 (RIN), by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *Mail:* National Park Service, Regional Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 99501. FOR FURTHER INFORMATION CONTACT: National Park Service, Victor Knox, Deputy Regional Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 99501. Telephone:
(907)644-3501. E-mail: *akro_regulations@nps.gov* . Fax:
(907)644-3816. SUPPLEMENTARY INFORMATION: Background In 1917 Congress established Mount McKinley National Park as a game refuge. By 1932, the park had been enlarged to approximately 2 million acres. In 1980 the Alaska National Interest Lands Conservation Act tripled the size of the park and renamed it Denali National Park and Preserve. At 6 million acres, Denali exemplifies interior Alaska's character as one of the world's last great frontiers for wilderness adventure. One third of the park is designated wilderness-the area that roughly conforms to the boundaries of the former Mount McKinley National Park. The former Mount McKinley is closed to hunting and trapping and is managed to maintain the undeveloped wilderness parkland character. The 1980 park additions allow customary and traditional subsistence uses by local rural residents. The preserve is open to subsistence uses and also to hunting and trapping under Alaska state law. The proposed regulations would revise Denali National Park and Preserve regulations in Subpart L of 36 CFR Part 13. The proposed rule implements the 2006 Final Environmental Impact Statement
(EIS)and Record of Decision
(ROD)regarding the Denali Backcountry Management Plan
(BMP)as well as the 2007 Environmental Assessment
(EA)and Finding of No Significant Impact (FONSI) for subsistence use of off-road vehicles in the Cantwell Traditional Use Area. Specific proposed changes include
(1)establishing group size limits in the backcountry, an annual limit of 1500 climbers on Mount McKinley, and camping permits where they are currently required through the compendium in accordance with the 2006 BMP/EIS; and
(2)restricting off-road vehicle use for subsistence purposes to designated routes and trails in Windy Creek, Cantwell Creek, and Bull River drainages in the Cantwell Traditional Use Area in accordance with the 2007 EA/FONSI. Each proposal is identified in the Section-by-Section Analysis that follows. As used within this document, the terms “we,” “our,” and “us” refer to the National Park Service. Section-by-Section Analysis Section 13.902 Subsistence Resident Zone ANILCA and NPS implementing regulations authorize subsistence hunting and fishing by local rural residents in parks and monuments established in 1980 and the portions of Denali National Park expanded in 1980. In Denali National Park, local rural residents are those who reside in a resident zone community identified in section 13.902, those who possess a permit issued by the superintendent under section 13.440 of this Part, and those who reside within the park boundary. A resident zone community consists of a significant concentration of local rural residents who customarily and traditionally engaged in subsistence uses in the park or monument. Section 808 of ANILCA establishes a Subsistence Resource Commission
(SRC)to make recommendations to the Secretary of the Interior regarding subsistence hunting matters for each national park or monument in Alaska where subsistence is authorized. In 1984, the NPS, in consultation with the Denali SRC, determined the area within a three mile radius of the Cantwell Post Office includes a significant concentration of local rural residents who customarily and traditionally engage in subsistence uses in the park additions. The three mile radius provision has been part of the Denali Subsistence Management Plan since August 2000 and the park compendium since 2001. Section 13.903 Subsistence Off-Road Vehicle Use The 1980 Alaska National Interest Lands Conservation Act (ANILCA) authorizes subsistence uses by local rural residents where traditional in the ANILCA additions of Denali National Park (Denali park additions). Section 811(b) of ANILCA authorizes the “appropriate use [of] * * * surface transportation traditionally employed” for subsistence uses by federally qualified local rural residents, subject to reasonable regulation. Relying on information available at the time, the 1986 Denali General Management Plan
(GMP)did not consider ORVs to have been regularly used for subsistence purposes and therefore did not consider them a traditional means of subsistence access. In the 1990s, several Cantwell residents provided information new to the NPS regarding historic off-road vehicle use for subsistence purposes in the Cantwell area of the Denali park additions and requested a revision to the GMP to allow traditional subsistence ORV use. The information included affidavits from Cantwell residents describing their use of ORVs for subsistence purposes, including types of ORVs, periods of use, location of use, purpose of use, and identified individuals who used ORVs. Upon reviewing the information, in 2005 the NPS determined that ORVs were used by successive generations of Cantwell residents for subsistence in the Cantwell area (Cantwell Traditional Use Area or TUA) of the Denali National Park additions (see 2005 Determination for Traditional ORV Use for Subsistence in the Cantwell Area) and therefore are authorized for subsistence purposes in this area under ANILCA section 811 and 36 CFR 13.460. In 2005 the park initiated a planning process and accompanying EA to assure that subsistence ORV use in the Cantwell Traditional Use Area is managed to minimize adverse impacts to the resources and values for which the park was established while continuing to provide reasonable access for subsistence purposes. Each year since the 2005 Determination, the NPS has implemented seasonal closures to subsistence ORV use in the Traditional Use Area—excluding the trails identified in this proposal—during the fall subsistence hunting season to protect park resources while the EA was being prepared and until permanent regulations are put into place. The Cantwell Subsistence Off-Road Vehicle Management EA was completed in 2007 and a FONSI was signed shortly thereafter. The NPS decided that only designated trails and areas in the Traditional Use Area would remain open to use of ORVs by federally qualified subsistence users from Cantwell and those residents of Game Management Unit 13E holding a permit issued pursuant to 36 CFR 13.440 for subsistence purposes. The designated trails and areas are: Windy Creek Access Trail, Windy Creek Bowl Trail, Cantwell Airstrip Trail, Pyramid Peak Trail, and the Cantwell Creek Floodplain Corridor. Future designation of a trail and area along the Bull River Floodplain Corridor is contingent upon access being secured across adjacent state lands, construction of an NPS approved trail, and a determination by the superintendent that ORV use continues to be necessary for reasonable access to the Bull River for subsistence resources. ORV use within the Bull River Floodplain Corridor and Cantwell Creek Floodplain Corridor would be limited to designated trails and unvegetated gravel bars. Motor vehicle use off of designated trails or areas would be prohibited. This provision would also establish the types of ORVs that may be operated on designated trails or areas, who is authorized to use ORVs, and methods to notify the public of closures or restrictions should changing environmental conditions warrant. Nothing in this provision would supersede the provisions of 36 CFR 13.460(d), which requires that ORVs be operated in compliance with applicable state and federal laws, and prohibits damaging park resources or harassing wildlife. Should credible information become available in the future regarding subsistence ORV use in other areas of the park additions or preserve, the park will at that time consider whether such ORV use is traditional under ANILCA section 811. The 2005 Cantwell Subsistence Traditionally Employed ORV Determination as well as the 200 EA and FONSI are available at park headquarters, *http://www.regs.gov,* and *http://www.nps.gov/dena/parkmgmt/managementdocs.htm.* Section 13.904 Camping This provision would replace the existing camping regulation that allows camping in accordance with the BMP, moving a camping permit requirement in the high visitation areas of the park from the compendium to regulation. This proposal would clarify that camping permits are required in the former Mount McKinley National Park and the Kantishna area. Based on visitation patterns, the NPS does not believe camping permits are necessary in other areas of the park or preserve at this time and therefore are not required. Section 13.905 Group Size This provision would implement the 2006 BMP/EIS decisions on group size. The BMP/EIS calls for a maximum backcountry group size of 12 for the eastern half of the park and a maximum of 6 in the western half of the park and preserve. The western half of the park has a lower group size limit. The western portion of the park and preserve are managed to provide opportunities for extended expeditions that are remote with little evidence of humans and few encounters with other visitors. The eastern half of the park receives more visitation, has more evidence of humans, and visitors should expect a greater likelihood of contacting others. This proposal would also provide the superintendent with discretion to authorize larger groups on a case by case basis. Section 13.910 Mountain Climbing This provision would implement sections of the 2006 BMP/EIS by requiring a permit to climb Mount McKinley or Mount Foraker and also establish a limit on the number of climbers on Mount McKinley. An existing 60 day advance registration requirement under current regulations was crafted with the intention of reducing climbing-related accidents and altitude illnesses on Mount McKinley and Mount Foraker. Prior to its promulgation, mountaineering teams could register the same day they departed for the mountain, often with little or no advance preparation or contact with experienced mountaineering rangers. With the advance contact, rangers have an early opportunity to evaluate an expedition's climbing history and make safety recommendations accordingly. These recommendations include urging additional glacier travel, altitude, or winter camping experiences prior to any ascent of Mount McKinley or Foraker; suggesting climbing with an authorized guiding service; or encouraging a more appropriate route based on the reported level of expertise. The advance notice also provides a climbing team adequate time to choose a leader, organize its members, and pre-plan the expedition for improved safety. This proposal would change the current registration requirement to a permit requirement and would establish an annual limit of 1500 climbers on Mount McKinley as called for in the BMP/EIS. Due to limited capacity by the NPS to provide required safety briefings, conduct ranger patrols, contact climbers on Mount McKinley, and respond to search and rescue incidents, the NPS determined more than 1500 climbers may compromise visitor and employee safety, potentially resulting in more fatalities. Over the past ten years, there has been an annual average of 1226 climbers attempting Mount McKinley, with a maximum of 1340 in 2005. Compliance With Other Laws Regulatory Planning and Review (Executive Order 12866) This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.
(1)This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. However, it is anticipated that governmental processes and economic efficiency in Denali National Park and Preserve would be improved by this proposed regulatory action.
(2)This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This is an agency-specific rule that will not interfere with other agencies or local government plans, policies, or controls. The proposals included with this rulemaking apply to areas managed by the National Park Service and do not conflict with other federal regulations. The review process used to develop the rulemaking proposals included consultation with the State of Alaska.
(3)This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs, or the rights and obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.
(4)This rule does not raise novel legal or policy issues. This rule implements existing legislative enactments, judicial interpretations, regulatory provisions, and planning decisions. It is not a completely new proposal, but rather a continuation of the rulemaking process begun in 1980 to implement various provisions of the Alaska National Interest Lands Conservation Act (ANILCA). In implementing ANILCA, NPS has sought to promulgate only those regulations necessary to interpret the law and to provide for the health and safety of the public and the environment. Regulatory Flexibility Act The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The economic effects of this rule are local in nature and negligible in scope. The proposals in this rulemaking will either implement rules unrelated to business activity or, in the case of the proposed annual climbing limits for Mount McKinley, does not extend beyond the usual contractual limits for small entities authorized to do business in the park. Consequently, the proposed rule will have no effect on small entities. Small Business Regulatory Enforcement Fairness Act (SBREFA) This rule is not a major rule under 5 U.S.C. 804(2), SBREFA. This rule: a. Does not have an annual effect on the economy of $100 million or more. Expenses related to compliance with various provisions of this proposed rule are slight. No new user fees or charges are proposed. Any incidental costs associated with the proposed climbing permits would be covered by or instead of those for the existing registration, check-in, or orientation programs and would not be additional. b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions. Most of the proposed provisions of this rulemaking will generally continue existing rules and use patterns for Denali National Park and Preserve. c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The various provisions of this proposed rule do not apply differently to U.S.-based enterprises and foreign-based enterprises. Unfunded Mandates Reform Act This rulemaking addresses only actions that will be taken by the NPS. It will not require any State, local or tribal government to take any action that is not funded. In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ): a. This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. This rule is an agency specific rule and imposes no other requirements on small governments. b. This rule will not produce a federal mandate of $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Takings (Executive Order 12630) In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required because no taking of property will occur as a result of this proposed rule. Federalism (Executive Order 13132) In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The proposed rule is limited in effect to federal lands and waters managed by the NPS and will not have a substantial direct effect on state and local government in Alaska. This proposed rule was initiated in part at the request of the state and has been drafted in close consultation with the State of Alaska and, as such, promotes the principles of federalism. Civil Justice Reform (Executive Order 12988) In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of §§ 3(a) and 3(b)(2) of the order. This rule does not impose a new burden on the judicial system. Paperwork Reduction Act This regulation requires information collection from 10 or more parties, which must be submitted for OMB approval under the Paperwork Reduction Act. However, these are not new collection requirements and, therefore, no additional request to OMB has been prepared. The information collection activities are necessary for the public to obtain benefits in the form of camping and climbing permits. National Environmental Policy Act We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A Record of Decision
(ROD)for the Denali National Park and Preserve Final Backcountry Management Plan Environmental Impact Statement was approved on February 21, 2006. On September 18, 2007, a Finding of No Significant Impact (FONSI) was approved for the Cantwell Subsistence ORV Management Environmental Assessment. These documents together represent the environmental analysis for this proposed rule, and are available for review at: *http://www.nps.gov/dena/parkmgmt/managementdocs.htm,* or *http://www.regulations.gov* Government-to-Government Relationship With Tribes In accordance with Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); the Department of the Interior—Alaska Policy on Government-to-Government Relations with Alaska Native Tribes dated January 18, 2001; part 512 of the Departmental Manual, Chapter 2 “Departmental Responsibilities for Indian Trust Resources”; and park consultation agreements with tribal governments, the potential effects on Federally-recognized Indian tribes have been evaluated, and it has been determined at this time that there are no potential effects that have not been addressed in prior decision documents. While the consultation agreements noted above have not resulted in findings of new potential effects, various proposals are of interest to local residents using Denali National Park and Preserve and have been facilitated by the relationships established through government-to-government consultation. Finally, the initial determination of effect noted here is dynamic and subject to change throughout this rulemaking process due to the ongoing nature of government-to-government consultation for the NPS areas in Alaska. Clarity of This Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a)Be logically organized;
(b)Use the active voice to address readers directly;
(c)Use clear language rather than jargon;
(d)Be divided into short sections and sentences; and
(e)Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. *Drafting Information:* The principal contributors to this proposed rule are: Peter Armington, Steve Carwile, Philip Hooge, and Joe Van Horn, Denali National Park and Preserve; Andee Sears and Paul Hunter, NPS Alaska Regional Office; and Jerry Case, Regulations Program Manager, NPS, Washington, DC. Public Participation You may submit comments online at: *http://www.regulations.gov.* Follow the instructions for submitting comments. You may also mail or hand deliver comments to: National Park Service, Regional Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 99501. Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 36 CFR Part 13 Alaska, National Parks, Reporting and recordkeeping requirements. In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 13 as set forth below: PART 13—NATIONAL PARK SYSTEM UNITS IN ALASKA 1. The authority citation for part 13 continues to read as follows: Authority: 16 U.S.C. 1, 3, 462(k), 3101 *et seq.* ; Subpart N also issued under 16 U.S.C. 1a-2(h), 20, 1361, 1531, 3197; Pub. L. 105-277, 112 Stat. 2681-259, October 21, 1998; Pub. L. 106-31, 113 Stat. 72, May 21, 1999; Sec. 13.1204 also issued under Sec. 1035, Pub. L. 104-333, 110 Stat. 4240. Subpart L—[Amended] 2. Revise § 13.902 to read as follows: § 13.902 Subsistence resident zone. The following communities and areas are included within the resident zone for Denali National Park addition: Cantwell (limited to the area within a 3 mile radius of the Cantwell post office as shown on a map available at the park visitor center), Minchumina, Nikolai, and Telida. 3. Add § 13.903 to subpart L to read as follows: § 13.903 Subsistence use of off-road vehicles. Operating a motor vehicle off road is prohibited except by authorized residents as defined in this section when engaged in subsistence uses. For purposes of this section, “authorized residents” means residents of the Cantwell resident zone community as defined by this subpart or those residents of Alaska Game Management Unit 13E holding a permit issued under § 13.440 of this part. Operating a motor vehicle off road for subsistence purposes outside any area designated by this section is prohibited. A map and GPS coordinates of designated trails and areas are available on the park Web site and at the park visitor center.
(a)Authorized residents may operate vehicles off road only in the following designated areas and trails:
(1)The Windy Creek Trail;
(2)The Cantwell Airstrip Trail;
(3)The Pyramid Trail;
(4)The Cantwell Creek Floodplain Trail/Corridor; and
(5)A trail or area along the Bull River Floodplain designated by the superintendent under paragraph
(b)of this section.
(b)The superintendent may designate a trail or area along the Bull River Floodplain Corridor for motor vehicle use by authorized residents if the superintendent determines that the following conditions are met:
(1)Access across adjacent non-NPS lands has been secured;
(2)An NPS-approved trail has been constructed on NPS lands; and
(3)Off-road vehicle use continues to be necessary for reasonable access to the Bull River for subsistence resources by authorized residents.
(c)All of the following are prohibited:
(1)Motor vehicles greater than 5.5 feet wide;
(2)Motor vehicles exceeding 1,000 pounds curb (unloaded) weight;
(3)Motor vehicles that steer by locking or skidding a wheel or track; and
(4)Operating a motor vehicle in violation of § 13.460(d) of this part.
(d)The superintendent may restrict or prohibit motor vehicle use authorized by this section in accordance with § 13.460(b) of this part. The Superintendent will notify the public of the proposed restriction or closure by:
(1)Publishing a notice in at least one newspaper of general circulation in the State and in at least one local newspaper if appropriate;
(2)Making information about the proposed or emergency actions available for broadcast on local radio stations; and
(3)Posting information about the proposed or emergency actions at local post offices, on the park Web site, and, if appropriate, on signs at the designated trails or areas. 4. Revise § 13.904 to read as follows: § 13.904 Camping. Camping without a permit in designated areas in the former Mount McKinley National Park or the Kantishna area is prohibited. A map showing areas where a permit is required for camping is available at the park visitor center and on the park Web site. Violating terms and conditions of the permit is prohibited. 5. Add § 13.905 to subpart L to read as follows: § 13.905 Group size.
(a)The following are prohibited:
(1)Group sizes exceeding 12 individuals on the east side of the park outside the Frontcountry Developed Area as defined by this subpart.
(2)Group sizes exceeding 6 individuals on the west side of the park outside the Frontcountry Developed Area as defined by this subpart.
(b)A map showing the east and west boundaries is available at the park visitor center.
(c)The superintendent may authorize larger groups on a case-by-case basis. 6. Revise § 13.910 to read as follows: § 13.910 Mountain climbing.
(a)Climbing Mount McKinley and Mount Foraker without a permit is prohibited. Climbers must apply for a permit at least 60 days in advance of any climb. The superintendent may authorize a maximum of 1500 climbers on Mount McKinley each year.
(b)Violating terms and conditions of the permit is prohibited. Dated: April 8, 2008. Lyle Laverty, Assistant Secretary, Fish and Wildlife and Parks. [FR Doc. E8-9184 Filed 4-25-08; 8:45 am] BILLING CODE 4310-EF-P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 2 [Docket No. PTO-T-2006-0011] RIN 0651-AC05 Institution of a Fee To File on Paper a Request for Reconsideration of a Final Office Action in a Trademark Case AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Supplemental notice of proposed rule and withdrawal of proposed rule. SUMMARY: In response to objections raised, the United States Patent and Trademark Office (“USPTO”) withdraws its prior proposal to amend the Rules of Practice in Trademark Cases to require a request for reconsideration of an examining attorney's final refusal or requirement to be filed through the Trademark Electronic Application System (“TEAS”) within three months of the mailing date of the final action. The USPTO instead proposes to require a fee of $50 for filing a request for reconsideration on paper, whereas no fee would be required for a request for reconsideration filed through TEAS. The proposed fee would cover the USPTO's added costs of processing a request for reconsideration filed on paper, rather than through TEAS. Currently, no fee is required in connection with a request for reconsideration, filed either on paper or through TEAS. DATES: Comments must be received by June 27, 2008 to ensure consideration. ADDRESSES: The Office prefers that comments be submitted via electronic mail message to *TMRECONCOMMENTS@USPTO.GOV* . Written comments may also be submitted by mail to Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451, attention Cynthia C. Lynch; or by hand delivery to the Trademark Assistance Center, Concourse Level, James Madison Building-East Wing, 600 Dulany Street, Alexandria, Virginia, attention Cynthia C. Lynch; or by electronic mail message via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site ( *http://www.regulations.gov* ) for additional instructions on providing comments via the Federal eRulemaking Portal. The comments will be available for public inspection on the Office's Web site at *http://www.uspto.gov* , and will also be available at the Office of the Commissioner for Trademarks, Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia. FOR FURTHER INFORMATION CONTACT: Cynthia C. Lynch, Office of the Deputy Commissioner for Trademark Examination Policy, by telephone at
(571)272-8742. SUPPLEMENTARY INFORMATION: The USPTO withdraws its prior proposal to amend the Rules of Practice in Trademark Cases to shorten the deadline for filing a request for reconsideration of a final Office action and to mandate that such a request be filed through TEAS. The USPTO received comments about practical difficulties presented by the potentially shorter deadline, and has determined that, at this time, the benefits that would be achieved by the shortened deadline do not outweigh the objections expressed by some commenters. Regarding the proposal to mandate filing through TEAS, the Office remains convinced that, as set forth in the previous notice, the filing of requests for reconsideration electronically, rather than on paper, promotes efficiency in processing the requests and, thereby, in the prosecution of the application. Paper-filed requests necessitate:
(1)Manual scanning and uploading of the documents into the USPTO database, and
(2)the creation of paper application file wrappers in which to store the original of the paper-filed request for those applications where all previous filings were through TEAS. In contrast, TEAS-filed requests are automatically uploaded into the USPTO database and require no manual scanning or creation of a file wrapper. Paper-filed requests also introduce processing delays in addition to those described above. Many applicants simultaneously seek reconsideration of a final refusal and file an appeal to the Trademark Trial and Appeal Board (“TTAB”). Because the examining attorney loses jurisdiction over the application upon the filing of an appeal to the TTAB, this simultaneous pursuit of reconsideration and appeal necessitates a remand by the TTAB to the examining attorney for a decision on the request for reconsideration. Where the applicant has filed the request on paper, the application is often remanded to the examining attorney before the request has been received and/or uploaded into the USPTO database, and so is not immediately available for the examining attorney's review and consideration. Thus, filing through TEAS expedites the examining attorney's notice of and access to the request, shortens pendency, requires less manual processing, and is more cost efficient for the USPTO. While not disputing the efficiencies achieved by TEAS-filing, some commenters indicated their desire to avoid filing through TEAS when the request for reconsideration would include voluminous attachments that the applicant must scan for submission through TEAS. As an initial matter, the USPTO notes that by the request for reconsideration stage, an applicant has already received at least one non-final action and, in response thereto, has had an opportunity to submit available evidence in support of registration. A request for reconsideration is not intended as an opportunity for an applicant to put forth evidence that could have been provided in response to an initial action. As such, a legitimate need to attach voluminous evidence to a request for reconsideration should only arise where significantly different evidence is included in the final action, which the applicant wishes to rebut. In addition, the USPTO notes that most filers are able to scan even voluminous evidence, and file it electronically. Nonetheless, in an effort to provide customer service to those who prefer to file requests for reconsideration on paper and therefore shift to the USPTO the burden of scanning and storing the request and all attachments, the USPTO proposes to permit such paper-filing upon payment of a fee in the amount of $50. This fee for paper filing would cover the USPTO's added costs of processing a request for reconsideration filed on paper. No fee would be required for filing a request for reconsideration through TEAS. A TEAS Plus applicant who files a request for reconsideration on paper would also be responsible for the fee for the loss of TEAS Plus status pursuant to §§ 2.23(b) and 2.23(a)(1)(i). References in this notice to “the Act,” “the Trademark Act,” or “the statute” refer to the Trademark Act of 1946, 15 U.S.C. 1051 *et seq.* , as amended. Discussion of Specific Rules The Office proposes to revise § 2.64(b) and § 2.6(a). Rule Making Requirements *Executive Order 13132:* This rule does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). *Executive Order 12866:* This rule has been determined not to be significant for purposes of Executive Order 12866 (Sept. 30, 1993). *Regulatory Flexibility Act:* This supplemental notice proposes requiring a $50 fee for the filing of a request for reconsideration on paper. The USPTO estimates that approximately 3,685 of the estimated 33,500 requests for reconsideration filed annually will be filed on paper and will incur the $50 fee. A request for reconsideration is an optional, rather than a mandatory, filing in the course of trademark prosecution. An applicant may therefore choose not to request reconsideration after a final action, and thereby avoid paying the $50 fee. Moreover, no fee will be required for a request for reconsideration filed through TEAS, so even where an applicant chooses to file a request for reconsideration, the applicant will not be required to pay the $50 fee if the applicant files electronically, rather than on paper. Therefore, the changes proposed in this notice will not have a significant economic impact on a substantial number of small entities. *Paperwork Reduction Act:* This supplemental notice of proposed rule making involves information collection requirements which are subject to review by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The collection of information involved in this notice was submitted to OMB for review in conjunction with the original notice of proposed rule making. That submission was pre-approved by OMB under OMB Control Number 0651-0050 on June 25, 2007. This supplemental notice proposes to allow applicants to file their requests for reconsideration on paper, as well as electronically, with the addition of a $50 fee for a paper filing. The current estimate remains the same for 33,500 requests for reconsideration filings per year. As a result of this supplemental notice, the USPTO estimates that 3,685 of the 33,500 requests for reconsideration will be filed in paper and will incur the $50 fee, for an estimated total burden increase of $184,250 per year. The agency believes that it will take the same amount of time to complete the request for reconsideration whether they are filed in paper or filed electronically, and therefore does not expect an increase in the burden hours as a result of this rule. The USPTO plans to submit to OMB the addition of the paper filings and the associated fee cost adjustment to the 0651-0050 collection at the final rule making stage. The currently approved estimated annual reporting burden for OMB Control Number 0651-0050 Electronic Response to Office Action and Preliminary Amendment Forms is 117,400 responses, 19,958 burden hours, and $0 in annualized non-hour costs. The estimated time per response is 10 minutes. The time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information is included in the estimate. The collection is approved through April of 2009. Comments are invited on:
(1)Whether the collection of information is necessary for proper performance of the functions of the agency;
(2)the accuracy of the agency's estimate of the burden;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information to respondents. Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden, to the Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451 ( *Attn:* Cynthia C. Lynch), and to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503 ( *Attn:* Desk Officer for the Patent and Trademark Office). Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. *Unfunded Mandates:* The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments or the private sector. List of Subjects in 37 CFR Part 2 Administrative practice and procedure, Trademarks. For the reasons stated, 37 CFR part 2 is proposed to be amended as follows: PART 2—RULES OF PRACTICE IN TRADEMARK CASES 1. The authority citation for 37 CFR part 2 continues to read as follows: Authority: 15 U.S.C. 1123, 35 U.S.C. 2, unless otherwise noted. 2. Amend § 2.6 by adding paragraph (a)(22) to read as follows: § 2.6 Trademark fees.
(a)* * *
(22)For filing on paper a request for reconsideration of a final action—$50.00. 3. Amend § 2.64 by revising paragraph
(b)to read as follows: § 2.64 Final action.
(b)During the period between a final action and expiration of the time for filing an appeal, the applicant may request reconsideration of the final action. If filed on paper, the request for reconsideration must be accompanied by the fee required by § 2.6, or it will not be examined, and no opportunity to correct the deficiency will be permitted. The filing of a request for reconsideration will not extend the time for filing an appeal or petitioning the Director, but normally the examiner will reply to a request for reconsideration before the end of the six-month period if the request is filed within three months after the date of the final action. Amendments accompanying requests for reconsideration after final action will be entered if they comply with the rules of practice in trademark cases and the Act of 1946. Dated: April 22, 2008. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E8-9216 Filed 4-25-08; 8:45 am] BILLING CODE 3510-16-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2008-0109; FRL-8559-4] Determination of Attainment for the Ozone National Ambient Air Quality Standards for Nonattainment Areas in Delaware, District of Columbia, Maryland, Pennsylvania, and Virginia AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to determine that two severe 1-hour ozone nonattainment areas, Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD and Metropolitan Washington, DC-MD-VA, attained the 1-hour ozone National Ambient Air Quality Standards (NAAQS) by the applicable attainment date of November 15, 2005. EPA also proposes to find that these areas are not subject to the imposition of the penalty fees under section 185 of the Clean Air Act (CAA). This proposal is based on three years of complete, quality-assured ambient air quality monitoring data for 2003 through 2005 ozone seasons. This proposed determination of attainment is not a redesignation to attainment for these severe areas for which air quality monitoring data indicates attainment of the standard. EPA is proposing this action to fulfill obligations to make such determinations under the CAA. DATES: Written comments must be received on or before May 28, 2008. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2008-0109 by one of the following methods: A. *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. B. *E-mail: Fernandez.cristina@epa.gov* C. *Mail:* EPA-R03-OAR-2008-0109, Cristina Fernandez, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2008-0109. EPA's policy is that all comments received 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 information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *http://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 *http://www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. FOR FURTHER INFORMATION CONTACT: Christopher Cripps,
(215)814-2179, or by e-mail at *cripps.christopher@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us,” and “our” refer to EPA. I. What Actions Are EPA Proposing? EPA is proposing two actions for both the Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD 1-hour ozone nonattainment area (hereafter “the Philadelphia area”) and the Metropolitan Washington, DC-MD-VA 1-hour ozone nonattainment area (hereafter “the Washington area”). For the Philadelphia area, EPA is proposing to determine that this area attained the 1-hour ozone NAAQS by its attainment date, November 15, 2005. Because EPA is proposing to find that this area has attained the 1-hour ozone NAAQS by its applicable attainment date, we also propose to find that this area is not subject to the imposition of the section 185 penalty fees. For the Washington area, EPA is proposing to determine that this area attained the 1-hour ozone NAAQS by its attainment date, November 15, 2005. Because EPA is proposing to find that this area has attained the 1-hour ozone NAAQS by its applicable attainment date, we also propose to find that this area is not subject to the imposition of the section 185 penalty fees. Under Section 181(b)(2) of the CAA, EPA must determine whether ozone nonattainment areas have attained the ozone NAAQS by their attainment date. In the case of the Philadelphia and Washington areas these determinations are based upon air quality monitoring data for the 2003 through 2005 ozone seasons and must be based on the area's design value as of the attainment date. 1 1 EPA remains obligated under section 181(b)(2) to determine whether an area attained the 1-hour ozone NAAQS by its attainment date. However, after the revocation of the 1-hour ozone NAAQS, EPA is no longer obligated to reclassify an area to a higher classification for the 1-hour NAAQS based upon a determination that the area failed to attain the 1-hour NAAQS by the area's attainment date for the 1-hour NAAQS. (40 CFR 51.905(e)(2)(i)(B). Thus even if we make a finding that an area has failed to attain the 1-hour ozone NAAQS by its attainment date, the area would not be reclassified to a higher classification. This proposed determination of attainment is not a redesignation to attainment action for these severe areas. Nor is it a determination as to whether either the Philadelphia area or Washington area has continued to maintain attainment with the NAAQS after November 15, 2005. II. What Is the Background for These Proposed Actions? A. What Are the Geographical Boundaries of the Philadelphia and Washington Areas? 1. What Are the Geographical Boundaries of the Philadelphia Area 1-Hour Severe Ozone Nonattainment Area? The Philadelphia 1-hour severe ozone nonattainment area consists of: Cecil County, Maryland; Kent and New Castle Counties in Delaware; Burlington, Camden, Cumberland, Gloucester, Mercer, and Salem Counties in New Jersey; and, Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties in Pennsylvania. 2. What Are the Geographical Boundaries of the Washington Area 1-hour Severe Ozone Nonattainment Area? The Washington 1-hour severe ozone nonattainment area consists of the District of Columbia (the District), a Northern Virginia portion (Arlington, Fairfax, Loudoun, Prince William, and Stafford Counties and the cities of Alexandria, Falls Church, Fairfax, Manassas, and Manassas Park), and Calvert, Charles, Frederick, Montgomery, and Prince George's Counties in Maryland. B. What Is the History of the Ozone Designations and Classifications and 1-Hour Ozone Requirements for the Philadelphia and Washington 1-Hour Ozone Nonattainment Areas? When the CAA Amendments were enacted in 1990, each area of the country that was designated nonattainment for the 1-hour ozone NAAQS, including the Philadelphia and Washington areas, were classified by operation of law as marginal, moderate, serious, severe, or extreme depending on the severity of the area's air quality problem. *See* , CAA sections 107(d)(1)(C) and 181(a). The Philadelphia 1-hour zone nonattainment area was classified as “severe-15” with a statutory attainment date of November 15, 2005. *See* , 56 FR 56694, November 6, 1991. The Washington area was designated nonattainment and initially classified “serious” for the 1-hour ozone NAAQS pursuant to section 181(a) of the CAA, but was later reclassified as “severe-15” with a statutory attainment date of November 15, 2005, due to its failure to attain by the November 15, 1999 attainment date for serious areas. *See* , 56 FR 56694, November 6, 1991 and 68 FR 3410, January 24, 2003. C. What Is the History of the 1-Hour Ozone Requirements Under EPA's Anti-Backsliding Rule? In an April 30, 2004 final rule (69 FR 23858), EPA designated and classified most areas of the country under the 8-hour ozone NAAQS promulgated in 40 CFR 50.10. On April 30, 2004, EPA also issued a final rule (69 FR 23951) entitled “Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 1” (Phase 1 Rule). Among other matters, this rule revoked the 1-hour ozone NAAQS in the Philadelphia and Washington areas (as well as most other areas of the country), effective June 15, 2005. *See* , 40 CFR 50.9(b); 69 FR at 23996; and 70 FR 44470, August 3, 2005. This Phase 1 Rule also set forth how anti-backsliding principles will ensure continued progress toward attainment of the 8-hour ozone NAAQS by identifying which 1-hour requirements remain applicable in an area after revocation of the 1-hour ozone NAAQS. Among the requirements not retained were the section 185 requirements for 1-hour severe or extreme nonattainment areas that fail to attain the 1-hour ozone NAAQS by the applicable 1-hour attainment date and the requirement to implement contingency measures for failure to attain the 1-hour ozone NAAQS by the applicable attainment date. *See* , 69 FR 23951, April 30, 2004, and 70 FR 30592, May 26, 2005. On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit (the Court) vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d 882 (D.C. Cir. 2006). Subsequently, in *South Coast Air Quality Management Dist.* v. *EPA* , 489 F.3d 1295 (D.C. Cir. 2007), in response to several petitions for rehearing, the Court clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. With respect to the challenges to the anti-backsliding provisions of the rule, the Court vacated three provisions that would have allowed States to remove from the SIP or to not adopt three 1-hour obligations once the 1-hour ozone NAAQS was revoked:
(1)Nonattainment area new source review
(NSR)requirements based on an area's 1-hour nonattainment classification;
(2)section 185 requirement for 1-hour severe or extreme nonattainment areas that fail to attain the 1-hour ozone NAAQS by the 1-hour attainment date; and
(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS or for failure to attain that NAAQS. The Court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. The provisions in 40 CFR 51.905(a)-(c) remain in effect and areas must continue to meet those anti-backsliding requirements. However, the three provisions noted previously, which are specified in 51.905(e), were vacated by the Court. As a result, States must continue to meet the obligations for 1-hour NSR; 1-hour contingency measures; and, for severe and extreme areas, the obligations related to the section 185 requirement. Currently, EPA is developing two proposed rules to address the Court's vacatur and remand with respect to these three requirements. We will address in this proposed rule how the 1-hour obligations that currently continue to apply under EPA's anti-backsliding rule (as interpreted by the Court) apply where EPA has made a determination that the area attained the 1-hour ozone NAAQS by its attainment date. D. What Are the Section 185 Requirements Pertinent to This Proposed Action? Section 185(a) of the CAA states that for a severe or extreme ozone nonattainment a State must collect fees on certain stationary sources of air pollution if the area “has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date.” E. What Are the Data Rounding Conventions for the 1-Hour Ozone NAAQS? Although the 1-hour ozone NAAQS as promulgated in 40 CFR 50.9 includes no discussion of specific data handling conventions, our publicly articulated position and the approach long since universally adopted by the air quality management community is that the interpretation of the 1-hour ozone standard requires rounding ambient air quality data consistent with the stated level of the standard, which is 0.12 parts per million (ppm). 40 CFR 50.9(a) states that: “The level of the national 1-hour primary and secondary ambient air quality standards for ozone * * * is 0.12 parts per million. * * *. The standard is attained when the expected number of days per calendar year with maximum hourly average concentrations Pennsylvania 0.12 parts per million * * * is equal to or less than 1, as determined by appendix H to this part.” We have clearly communicated the data handling conventions for the 1-hour ozone NAAQS in guidance documents. As early as 1979, EPA issued guidance that the level of our NAAQS dictates the number of significant figures to be used in determining whether the standard was exceeded. The stated level of the standard is taken as defining the number of significant figures to be used in comparisons with the standard. For example, a standard level of 0.12 ppm means that measurements are to be rounded to two decimal places (0.005 rounds up), and, therefore, 0.125 ppm is the smallest concentration value in excess of the level of the standard. *See* , “Guideline for the Interpretation of Ozone Air Quality Standards,” EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979. EPA has consistently applied the rounding convention in this 1979 guideline. For example, *see* , 68 FR 19106 at 19111, April 17, 2003; 68 FR 62041 at 62043, October 31, 2003; and, 69 FR 21717 at 21719, April 22, 2004. F. How Do We Make Attainment Determinations? Section 181(b)(2)(A) requires the Administrator to determine after the attainment date whether ozone nonattainment areas have attained the NAAQS. This provision states: “Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by the date.” Although section 181(b)(2)(A) states that the determination of attainment status be based on the area's “design value,” EPA interprets this provision generally to refer to EPA's methodology for determining attainment status. That is, EPA determines attainment status under the 1-hour ozone NAAQS on the basis of the annual average number of expected exceedances of the NAAQS over the 3-year period up to, and including, the attainment date. *See* , 60 FR 3349, January 17, 1995. *See, also* , “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 at 13506, April 16, 1992 (the “General Preamble”). We will determine whether an area's air quality is meeting the NAAQS for purposes of sections 181(b)(2) based upon data that has been collected and quality-assured in accordance with 40 CFR part 58, and recorded in EPA's Air Quality System
(AQS)database, (formerly known as the Aerometric Information Retrieval System (AIRS)). The 1-hour ozone NAAQS is 0.12 ppm, not to be exceeded on average more than 1 day per year averaged over any 3-year period. *See* , 40 CFR 50.9 and appendix H to 40 CFR part 50. To account for missing data, the procedures found in appendix H to 40 CFR part 50 are used to adjust the actual number of monitored exceedances of the standard to yield the annual number of expected exceedances (“expected exceedance days”) at an air quality monitoring site. Under our policies, we determine if an area has attained the 1-hour ozone NAAQS by calculating, at each monitor, the average expected number of days over the standard per year (i.e., “average number of expected exceedance days”) during the applicable 3-year period. *See* , generally the General Preamble, 57 FR at 13506, April 16, 1992 and Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, EPA, to Regional Air Office Directors; “Procedures for Processing Bump Ups and Extensions for Marginal Ozone Nonattainment Areas,” February 3, 1994. While the latter is explicitly applicable only to marginal areas, the general procedures for evaluating attainment in terms of the average number of expected exceedance days during the applicable 3-year period in this memorandum apply regardless of the initial classification of an area because all findings of attainment are made pursuant to the same CAA requirements in section 181(b)(2). As noted previously, the applicable attainment date under the 1-hour ozone NAAQS for both the Philadelphia and Washington areas was November 15, 2005. Under these requirements, for severe ozone nonattainment areas with a statutory attainment date of November 15, 2005, we have based our proposed determination of attainment of the 1-hour ozone NAAQS by the applicable attainment date on the average number of expected exceedance days per year for the period 2003 though 2005 to determine whether the area met its applicable attainment date under section 181 of the CAA. We have reviewed this data to determine the area's air quality status in accordance with 40 CFR 50.9, and EPA policy guidance as discussed in the preceding paragraphs and in the previous discussion on rounding conventions elsewhere in the is document. III. What Is the Basis for EPA's Proposed Determinations of Attainment Under Section 181? A. How Did We Determine That the Philadelphia and Washington Areas Attained the 1-Hour Ozone NAAQS by the Applicable Attainment Date? From 2003 through 2005, ambient air quality for ozone was monitored on a continuous basis at 18 monitoring sites within the Philadelphia area and at 17 monitoring sites in the Washington area. As noted previously, the applicable attainment date for both the Philadelphia and Washington severe 1-hour ozone nonattainment areas was November 15, 2005. We are evaluating attainment based on the data from 2003 through 2005. 1. Summary of the Philadelphia Area's Ozone Data for 2003 to 2005 During the entire 2003 to 2005 period, 18 ozone monitoring stations in the Philadelphia area were in operation. One other monitor discontinued operations in 2003. 2 Table 1.A summarizes the ozone data collected at the 18 ozone monitoring stations during the 2003 to 2005 period and included in AQS for the Philadelphia area. This data has been quality assured and is recorded in AQS. The Philadelphia area States use the AQS as the permanent database to maintain its data and quality assure the data transfers and content for accuracy. We have used the established rounding conventions set forth in our guidance documents and regulations. 2 This was the monitor located at West Chester University in West Chester, Chester County, Pennsylvania (AQS ID# 420290050). The monitor had averaged 0.3 exceedances per year over this 3-year period from 2001 to 2003. Therefore, EPA concludes that this monitor was attaining the 1-hour ozone NAAQS at the time monitoring ceased at this site. Table 1.A.—Average Number of Ozone Expected Exceedance Days Per Year by Monitors in the Philadelphia Area 2003 to 2005 Monitor information State Monitor AQS ID No. Number of expected exceedance days 2003 2004 2005 Average number of expected exceedance days per year 2003-05 DE Killens Pond Rd, Kent County 100010002 1.0 0.0 0.0 0.3 DE Lums Pond State Park, New Castle County 100031007 1.0 0.0 2.0 1.0 DE Brandywine Creek State Park, New Castle County 100031010 0.0 0.0 0.0 0.0 DE Bellevue State Park, New Castle County 100031013 0.0 0.0 0.0 0.0 MD Fairhill, Cecil County 240150003 0.0 0.0 2.0 0.7 NJ Copewood E. Davis Sts, Camden 340070003 0.0 0.0 0.0 0.0 NJ Ancora State Hospital, Camden County 340071001 2.0 0.0 0.0 0.7 NJ Lincoln Ave. & Highway 55, Vineland, Cumberland County 340110007 1.0 0.0 1.0 0.7 NJ Shady Lane Rest Home, Clarksboro, Gloucester County 340150002 2.0 0.0 0.0 0.7 NJ Rider College, Mercer County 340210005 0.0 0.0 0.0 0.0 PA Rockview Lane, Bristol, Bucks County 420170012 0.0 0.0 1.0 0.3 PA New Garden Airport—Toughkenamon, Chester County 420290100 0.0 0.0 1.0 0.3 PA Front St & Norris St, Chester, Delaware County 420450002 0.0 0.0 1.1 0.4 PA State Armory, Norristown, Montgomery County 420910013 0.0 0.0 0.0 0.0 PA 1501 E Lycoming Ave AMS Lab, Philadelphia 421010004 0.0 0.0 0.0 0.0 PA Roxy Water Pump Sta, Philadelphia 421010014 0.0 0.0 0.0 0.0 PA Grant-Ashton Roads, NE Airport, Philadelphia 421010024 0.0 0.0 2.0 0.7 PA Amtrak, 5917 Elmwood Avenue, Philadelphia 421010136 0.0 0.0 0.0 0.0 Source: EPA AQS Database. As shown in Table 1.A, the average number of expected exceedance days per year is less than or equal to 1.0 at all of the sites. Therefore, we propose to find that the Philadelphia area attained the 1-hour ozone NAAQS by November 15, 2005, which was the applicable attainment date under the 1-hour ozone NAAQS for this nonattainment area. 2. Summary of the Washington Area's Ozone Data for 2003 to 2005 During the entire 2003 to 2005 period, there were 17 ozone monitoring stations in the Washington area were in operation. One other monitor had discontinued operations in 2003. 3 Table 1.B summarizes the ozone data collected at the ozone monitoring stations during the 2003 to 2005 period and included in AQS for the Washington area. This data has been quality assured and is recorded in AQS. The Washington area States use the AQS as the permanent database to maintain its data and quality assure the data transfers and content for accuracy. We have used the established rounding conventions set forth in our guidance documents and regulations. 3 This was the monitor located at the Goddard Space Flight Center in Greenbelt, Prince George's County, Maryland (AQS Id# 240330002). This monitor had averaged of 0.7 exceedances per year over this 3-year period from 2001 to 2003. Therefore, EPA concludes that this monitor was attaining the 1-hour ozone NAAQS at the time monitoring ceased at this site. Table 1.B.—Average Number of Ozone Expected Exceedance Days per Year by Monitors in the Washington Area 2003 to 2005 Monitor information State Monitor AQS ID No. Number of expected exceedance days 2003 2004 2005 Average number of expected exceedance days per year 2003-05 DC Tacoma School, Washington 110010025 0.0 0.0 0.0 0.0 DC River Terrace, 34th and Dix Streets, NE, Washington 110010041 0.0 0.0 0.0 0.0 DC McMillan Reservoir, 2500 1st Street, NW, Washington 110010043 0.0 0.0 0.0 0.0 MD Calvert County 240090011 Note 1 Note 1 0.0 Note 1 MD Southern Maryland, Charles County 240170010 1.0 0.0 0.0 0.3 MD Frederick County 240210037 0.0 0.0 0.0 0.0 MD Rockville, Montgomery County 240313001 1.1 0.0 0.0 0.4 MD Howard University's Beltsville Laboratory, Beltsville, Prince George's County 240330030 Note 1 Note 1 0.0 Note 1 MD P.G. County Equestrian Cntr, Prince George's County 240338003 2.0 0.0 0.0 0.7 VA 18th And Hayes St, Arlington County 510130020 1.0 0.0 0.0 0.3 VA Cub Run Lee Rd, Chantilly, Fairfax County 510590005 0.0 0.0 0.0 0.0 VA Mount Vernon, Fairfax County 510590018 2.0 1.0 0.0 1.0 VA Lee Park, Franconia, Fairfax County 510590030 1.0 1.0 0.0 0.7 VA 6507 Columbia Pike, Annandale, Fairfax County 510591005 1.0 0.0 0.0 0.3 VA McLean, Fairfax County 510595001 0.0 1.0 0.0 0.3 VA Ashburn, Loudoun County 511071005 0.0 1.0 0.0 0.3 VA Long Park, Prince William County 511530009 0.0 0.0 0.0 0.0 VA Widewater, Stafford County 511790001 0.0 0.0 0.0 0.0 VA Alexandria City 515100009 0.0 1.0 0.0 0.3 Source: EPA AQS Database. Notes: 1. These two additional monitoring sites commenced operations in 2005. Because neither of these two monitoring sites recorded an exceedance of the 1-hour ozone NAAQS in 2005, EPA concludes that these monitors were attaining the 1-hour ozone NAAQS in 2005. As shown in Table 1.B, the average number of expected exceedance days per year is less than or equal to 1.0 at all of the sites. Therefore, we propose to find that the Washington area attained the 1-hour ozone NAAQS by November 15, 2005, which was the applicable attainment date under the 1-hour ozone NAAQS for this nonattainment area. IV. What Would Be the Consequences of This Proposed Action? Because the area has attained the 1-hour ozone NAAQS by the applicable attainment date, the area is not subject to the requirement to implement contingency measures for failure to attain the 1-hour ozone NAAQS by its attainment date. Since the area has met its attainment deadline, even if the area subsequently lapses into nonattainment, it would not be required to implement the contingency measures for failure to attain the 1-hour ozone NAAQS by its attainment date. If a severe or extreme 1-hour ozone nonattainment area attains by its 1-hour ozone attainment date, it would not be required to implement the section 185 penalty fees program. Section 185(a) of the CAA states that a severe or extreme ozone nonattainment must implement a program to impose fees on certain stationary sources of air pollution if the area “has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date.” Consequently, if such an area has attained the standard as of its applicable attainment date, even if it subsequently lapses into nonattainment, the area would not be required to implement the section 185 penalty fees program. Because EPA is proposing to find that the area has attained the 1-hour ozone NAAQS by its applicable attainment date, we also propose to find that the area is not subject to the imposition of the section 185 penalty fees. V. Proposed Actions A. Philadelphia Area Based upon EPA's review of the air quality data for the 3-year period 2003 to 2005, EPA is proposing to determine that the Philadelphia severe 1-hour ozone nonattainment area attained the 1-hour ozone NAAQS by the applicable attainment date of November 15, 2005. EPA also proposes to find that this area is not subject to the imposition of the section 185 penalty fees. B. Washington Area Based upon EPA's review of the air quality data for the 3-year period 2003 to 2005, EPA is proposing to determine that the Washington severe 1-hour ozone nonattainment area attained the 1-hour ozone NAAQS by the applicable attainment date of November 15, 2005. EPA also proposes to find that this area is not subject to the imposition of the section 185 penalty fees. VI. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this 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 proposed action merely proposes to find that an area has attained a previously-established NAAQS based on an objective review of measured air quality data and imposes no additional requirements. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule does not impose any additional enforceable duties, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have 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), nor will it 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 proposes to determine that each of two areas has attained a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This rule does not involve establishment of technical standards, and 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 proposed 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. These proposed rules to determine that the Philadelphia and Washington severe zone nonattainment areas attained the 1-hour ozone NAAQS and are not required to impose section 185 penalty fees does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: April 15, 2008. W.T. Wisniewski, Acting Regional Administrator, Region III. [FR Doc. E8-9261 Filed 4-25-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2008-0260; FRL-8556-6] RIN 2060-AO57 Standards of Performance for Coal Preparation Plants AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: Pursuant to section 111(b)(1)(B) of the Clean Air Act (CAA), EPA has reviewed the emissions limits in the standards of performance for coal preparation plants which were promulgated January 15, 1976. This action presents the results of EPA's review and proposes amendments to limits for coal preparation plants consistent with those results. Specifically, we are proposing to tighten and add additional particulate matter
(PM)emissions limits for sources constructed after April 28, 2008. In addition, we are proposing to clarify the procedures used to measure emissions from coal preparation plants and add new monitoring requirements for sources constructed after April 28, 2008. DATES: *Comments.* Comments must be received on or before June 12, 2008. If anyone contacts EPA by May 8, 2008 requesting to speak at a public hearing, EPA will hold a public hearing on May 13, 2008. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by the Office of Management and Budget
(OMB)on or before May 28, 2008. ADDRESSES: *Comments.* Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2008-0260, by one of the following methods: • *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail:* *a-and-r-docket@epa.gov* . • *By Facsimile:*
(202)566-1741. • *Mail:* Air and Radiation Docket, U.S. EPA, Mail Code 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503. EPA requests a separate copy also be sent to the contact person identified below (see FOR FURTHER INFORMATION CONTACT ). • *Hand Delivery:* EPA Docket Center, Docket ID Number EPA-HQ-OAR-2008-0260, EPA West Building, 1301 Constitution Ave., NW., Room 3334, Washington, DC, 20004. Such deliveries are accepted only during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2008-0260. EPA's policy is that all comments received 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 information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air and Radiation Docket EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air and Radiation Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Mr. Christian Fellner, Energy Strategies Group, Sector Policies and Programs Division (D243-01), U.S. EPA, Research Triangle Park, NC 27711, telephone number
(919)541-4003, facsimile number
(919)541-5450, electronic mail (e-mail) address: *fellner.christian@epa.gov* . SUPPLEMENTARY INFORMATION: *Regulated Entities.* Entities potentially affected by this proposed action include, but are not limited to, the following: Category NAICS 1 Examples of regulated entities Industry 212111 Bituminous Coal and Lignite Surface Mining. 212112 Bituminous Coal Underground Mining. 221112 Fossil Fuel Electric Power Generation. 212113 Anthracite Mining. 213113 Support Activities for Coal Mining. 322121 Paper (except Newsprint) Mills. 324199 All other petroleum and coal products manufacturing. 325110 Petrochemical Manufacturing. 327310 Cement Manufacturing. 331111 Iron and Steel Mills. Federal Government 22112 Fossil fuel-fired electric utility steam generating units owned by the Federal Government. State/local/tribal government 22112 921150 Fossil fuel-fired electric utility steam generating units owned by municipalities. Fossil fuel-fired electric steam generating units in Indian Country. 1 North American Industry Classification System (NAICS) code. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the proposed rule. This table lists categories of entities that may have coal preparation plants regulated by this proposed rule. To determine whether your facility is regulated by the proposed rule, you should examine the applicability criteria in § 60.250 and the definitions in § 60.251. If you have any questions regarding the applicability of the proposed rule to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. *WorldWide Web (WWW).* Following the Administrator's signature, a copy of the proposed amendments will be posted on the Technology Transfer Network's
(TTN)policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg* . The TTN provides information and technology exchange in various areas of air pollution control. *Public Hearing.* If a public hearing is requested, it will be held at 10 a.m. at the EPA Facility Complex in Research Triangle Park, North Carolina or at an alternate site nearby. Contact Mr. Christian Fellner at 919-541-4003 to request a hearing, to request to speak at a public hearing, to determine if a hearing will be held, or to determine the hearing location. *Outline.* The information presented in this preamble is organized as follows: I. Background II. Summary of Proposed Amendments A. Applicability B. PM Emission Limit C. Monitoring and Recordkeeping Requirements D. Additional Proposed Amendments III. Rational for the Proposed Amendments A. Determination of Best Demonstrated Technology
(BDT)B. Selection of Thermal Dryer PM Emission Limit C. Selection of Pneumatic Coal-Cleaning PM Emission Limit D. Selection of Coal Processing and Conveying Equipment, Coal Storage Systems, and Transfer and Loading System PM and Opacity Limits E. Monitoring and Recordkeeping Requirements IV. Modification and Reconstruction Provisions V. Summary of Costs, Environmental, Energy, and Economic Impacts VI. Request for Comment VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paper Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. Background New source performance standards
(NSPS)implement CAA section 111(b) and are issued for categories of sources which have been identified as causing, or contributing significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare. The primary purpose of the NSPS are to help States attain and maintain ambient air quality by ensuring that the best demonstrated emission control technologies are installed as the industrial infrastructure is modernized. Since 1970, the NSPS have been successful in achieving long-term emissions reductions at numerous industries by assuring cost-effective controls are installed on new, reconstructed, and modified sources. CAA section 111 requires that NSPS reflect the degree of emission limitation achievable through application of the best system of emissions reductions which (taking into consideration the cost of achieving such emissions reductions, any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. This level of control is commonly referred to as best demonstrated technology (BDT). CAA section 111(b)(1)(B) requires the EPA to periodically review and revise the standards of performance, as necessary, to reflect improvements in methods for reducing emissions. The current NSPS for coal preparation plants are contained in 40 CFR part 60, subpart Y, and were promulgated in the **Federal Register** on January 15, 1976 (41 FR 2232). Subpart Y is applicable to facilities which process more than 181 megagrams
(Mg)(200 tons) of coal per day that commenced construction, reconstruction, or modification after October 24, 1974. The first review of the Coal Preparation Plants NSPS was completed on April 14, 1981 (46 FR 21769). The second review of the Coal Preparation Plants NSPS was completed on April 03, 1989 (54 FR 13384). EPA did not make changes to the NSPS as a result of these reviews. II. Summary of Proposed Amendments We are proposing to amend 40 CFR part 60, subpart Y, to revise emissions limits and monitoring requirements for affected facilities constructed, reconstructed, or modified after April 28, 2008 at coal preparation plants processing more than 181 Mg (200 tons) of coal per day. We are also proposing to add provisions to subpart Y to clarify procedures for monitoring opacity at facilities presently subject to subpart Y. A summary of the proposed substantive amendments is presented below. A. Applicability Subpart Y presently applies to the following affected facilities located at coal preparation plants which process more than 181 Mg (200 tons) of coal per day: Thermal dryers, pneumatic coal-cleaning equipment (air tables), coal processing and conveying equipment (including breakers and crushers), coal storage systems, and transfer and loading systems. The terms “thermal dryer” and “pneumatic coal-cleaning equipment” are defined to include only facilities that process bituminous coal and “Coal storage system” is defined to exclude open storage piles. We are proposing not to amend the designation of affected facilities or the definitions of thermal dryer, pneumatic coal-cleaning equipment, coal processing and conveying equipment, coal storage system, or transfer and loading system. B. PM Emission Limit For thermal dryers constructed, modified, or reconstructed after April 28, 2008, we are proposing to revise the PM emission limit to 0.046 grams per dry standard cubic meter (g/dscm) (0.020 grains per dry standard cubic foot (gr/dscf)). For pneumatic coal-cleaning equipment constructed, modified, or reconstructed after April 28, 2008, we are proposing to revise the PM emissions limit to 0.011 g/dscm (0.0050 gr/dscf) and the opacity limit to 5 percent. For coal processing and conveying equipment, coal storage systems, and transfer and loading systems that commenced construction, reconstruction, or modification after April 28, 2008, we are proposing to revise the opacity limit to 5 percent. Finally, for coal processing and conveying equipment, coal storage systems, and transfer and loading systems processing coals other than bituminous coals that commenced construction or reconstruction after April 28, 2008 or were modified after April 28, 2008 and are enclosed, we are proposing to require that all PM emissions be vented to a stack and that emissions from the stack meet a PM standard of 0.011 g/dscm (0.0050 gr/dscf). C. Monitoring and Recordkeeping Requirements We are proposing to clarify the procedures that should be used by sources covered by subpart Y to monitor opacity. We are also proposing to require owners/operators of thermal dryers and pneumatic coal-cleaning equipment constructed, modified, or reconstructed after April 28, 2008 to either install and operate a PM continuous emissions monitoring system (PM CEMS) or to conduct annual PM performance tests. In addition, we are proposing to require owners/operators of pneumatic coal-cleaning equipment or thermal dryers using fabric filters constructed, modified, or reconstructed after April 28, 2008 not using PM CEMS to install a bag leak detection system. Finally, we are proposing to eliminate the opacity limit for owners/operators of affected facilities that properly install and continuously operate a PM CEMS. To monitor the opacity at coal processing and conveying equipment, coal storage systems, and transfer and loading systems constructed, modified, or reconstructed after April 28, 2008, owner/operators of affected facilities shall conduct EPA Test Method 22, Appendix A-7, 40 CFR part 60, observations each calendar month that the coal preparation plant operates. If the results of the Method 22 observations indicate the presence of visible emissions for more than 5 percent of the observation period, the owner/operator would be required to conduct an EPA Test Method 9, Appendix A-4 of 40 CFR part 60, performance test on that affected facility within 24 hours. The data from the Method 9 test would be compared to the applicable opacity limit. Finally, we are proposing to add specific recordkeeping requirements to subpart Y that would require the owner/operator of an affected facility that commenced construction, reconstruction, or modification after April 28, 2008 to maintain a logbook that records the visual opacity observations, the amount of chemical stabilizer or water purchased to control PM emissions, and the amount and ranks of coal processed each month. D. Additional Proposed Amendments We are proposing to add a definition for a bag leak detection system. In addition, we are proposing to amend the definitions of bituminous coal and coal to include the most recent ASTM test procedures. Finally, for a venturi scrubber, liquid flow rate is a better indicator of performance then liquid pressure monitoring, and we are proposing to add flow rate monitoring as an alternative to pressure monitoring. These changes update the definitions sections and are only intended to clarify the monitoring provisions, but do not substantively change the standards that apply to sources constructed before April 28, 2008. III. Rationale for the Proposed Amendments A. Determination of Best Demonstrated Technology
(BDT)We reviewed air permits for coal handling/processing/preparation/cleaning (process type 90.011) in the RACT/BACT/LAER Clearinghouse
(RBLC)clearinghouse to determine BDT for existing coal preparation plants. In this review, we did not identify any emerging pollution prevention measures or PM control technologies at coal mines, electric power plants, or other industrial facilities. Therefore, we assumed that the following PM controls can be used on thermal dryers and pneumatic coal-cleaning equipment: A centrifugal (cyclone) collector, followed by a venturi scrubber and fabric filter respectively. Based on this review, we also concluded that the following PM controls can be used at coal processing and conveying equipment, coal storage systems, and transfer and loading systems at coal preparation plants: Enclosures in conjunction with either wet or chemical suppression or venting to a fabric filter. B. Selection of Thermal Dryer PM Emission Limit When developing the proposed standards, we concluded that it is appropriate to use a fuel-neutral approach. The fuel-neutral principle dictates that emission standards should be as neutral as possible between clean fuels (fuels that have inherently low emissions) and other fuels. We are proposing to adopt this approach in order to set a nationwide emission standard that can be achieved by all new facilities in this source category, including facilities that do not have long-term access to clean fuels at a reasonable cost. In addition, we have concluded that the most bituminous coal mines are located away from major population centers and are not connected to the natural gas distribution system and that the use of natural gas as the thermal dryer fuel is not an option. Therefore, we concluded that the thermal dryer limit should be based on the combustion of coal. A review of EPA's RBLC database over the past decade indicated that three new permits have been granted for new and modified coal-fired thermal dryers located at coal mines. The first permit was granted to the Island Creek coal preparation plant to modify an existing thermal dryer. The other two permits were granted to the Buchanan coal preparation plant. One was to modify an existing thermal dryer, and the other was to construct a new thermal dryer. All three coal-fired thermal dryers have PM permit limits of 0.025 gr/dscf; however, the new thermal dryer was never constructed at the Buchanan unit. To gather additional data, EPA reviewed permits for thermal dryers built more than 10 years ago to identify permit conditions that were more stringent than the existing NSPS. One of the identified plants was Mettiki general coal preparation plant, which had a permit limit of 0.020 gr/dscf. EPA reviewed PM performance test from 2000 from the Metikki facility, 1997 data from the Island Creek facility, and PM and opacity performance test data from 2003 and 2006 from the modified Buchanan thermal dryer. The average PM performance test results were 0.013, 0.019, 0.020, and 0.018 gr/dscf, respectively. The maximum opacity readings for the 2003 and 2006 performance tests at the Buchanan plant were 10 and 20 percent, respectively. We selected 0.020 gr/dscf as the proposed PM limit because this level is currently being achieved by the thermal dryer located at the three facilities subject to the most stringent PM limits, and because we did not identify any emerging pollution prevention or emission control technologies. In addition, we have concluded that the existing opacity limit of 20 percent is appropriate since the opacity data from the Buchanan plant demonstrates that compliance with the PM mass emission limit is possible at an opacity of 20 percent and has decided not to revise the limit. We are not proposing to set separate limits for condensable PM, PM2.5, or PM10 emissions. Based on AP-42 emission factors, condensable PM accounts for only approximately 1 percent of total PM emissions from a fluidized bed dryer. Based on AP-42 emissions factors, a high efficiency venturi scrubber controls 75 percent of condensable PM, and 99 percent of the total filterable PM. PM2.5 accounts for approximately 15 percent of filterable PM emissions from a fluidized bed dryer. Even though the collection efficiency for a venturi scrubber decreases with decreasing PM size, we have concluded that the improvements in design required to comply with the amended PM standard will result in 50 percent collection efficiency of submicron particles. Therefore, we concluded that setting a total filterable PM limit is sufficient. Further, at this time we do not have sufficient performance test data on condensable PM or PM2.5 emissions from thermal dryers to determine what limits would be reasonable. Finally, although we acknowledge that the addition of controls after the high efficiency venturi scrubber could result in lower condensable and PM2.5 emissions, we do not have any way to estimate the performance of such controls to conduct a cost analysis. Therefore we cannot conclude at this time that such controls would constitute the best demonstrated technology for this source category. C. Selection of Pneumatic Coal-Cleaning Equipment PM Emission Limit We are proposing to revise the PM and opacity limits that would apply to pneumatic coal-cleaning equipment constructed, modified, or reconstructed after April 28, 2008. A review of the RBLC database indicated that no new pneumatic coal-cleaning equipment has been permitted in the past decade. We concluded, however, that performance from baghouses on coal processing and conveying equipment, coal storage systems, and transfer and loading systems is representative of the performance that would be expected of new pneumatic coal-cleaning equipment. Therefore, we determined that the level of control that reflects the BDT for coal processing and conveying equipment, coal storage systems, and transfer and loading systems standards also reflects the BDT for pneumatic coal-cleaning equipment. The following section describes how the proposed PM and opacity standards for these affected facilities were developed. D. Selection of Coal Processing and Conveying Equipment, Coal Storage Systems, and Transfer and Loading System PM and Opacity Limits To determine the best demonstrated technology for coal processing and conveying equipment, coal storage systems, and transfer and loading systems, we reviewed control measures currently in use at coal preparation plants to reduce emissions from coal processing and conveying equipment, coal storage systems, and transfer and loading systems. This review indicated that most new facilities use either partial or total enclosures in conjunction with either wet or chemical suppression or venting to a baghouse. However, no single PM control scheme works for all coal ranks throughout the country. Bituminous coals typically have high surface moisture contents and low uncontrolled PM emissions. Facilities currently utilizing bituminous coal typically use enclosures with either wet suppression or chemical suppression to control PM emissions from the various processing and handling operations at a coal preparation plant. Low rank coals (subbituminous and lignite) tend to have low surface moisture and higher uncontrolled PM emissions, but the use of wet suppression can significantly decrease the coal's heating value. In addition, water resources are often limited in the regions where low rank coals are processed. Consequently, facilities currently utilizing low rank coals typically use enclosures and controls other than wet suppression (e.g., chemical sprays, fogging systems, or venting to a fabric filter) to control PM emissions from the various processing and handling operations at a coal preparation plant. We developed uncontrolled emission rates for coal processing and conveying equipment, coal storage systems, and transfer and loading systems using emissions information from three references (i.e., EPA's AP-42 emission factors, the CHEER workshop proceedings, and the Emission Estimation Technique Manual for Mining). We are not aware of any additional sources of information for uncontrolled emissions rates for these operations and, for the purposes of this analysis, we selected the uncontrolled emissions factor for each coal preparation operation based on the information contained in these references. We also selected default percent control efficiencies for different control devices based on information contained in these references. Using the default uncontrolled emission rates and the default control efficiencies, we determined the cost effectiveness of the various control options. We developed six model coal preparation plants to evaluate the cost effectiveness of the control options. The model plants are located at a bituminous coal mine, a subbituminous coal mine, an electric utility steam generating unit, a coke production facility, a cement manufacturing facility, and an industrial site. For each model coal preparation plant, we compared the use of chemical suppressants to venting to a fabric filter because these are the options with the highest level of control. Based on an analysis of these model coal preparation plants, we drew the following conclusions regarding the BDT for affected facilities at these plants. Control technologies and costs, and therefore BDT, differ depending on the type of coal processed. For coal preparation plants processing bituminous coal at end-user locations (the electric utility steam generating unit, the coke production facility, the cement manufacturing facility, and the industrial site), we concluded that requiring fabric filters instead of using chemical suppressants would result in an annual reduction of 7 tons of PM, but cost an additional $640,000 annually. In addition, the incremental benefit and cost of fabric filters at a bituminous mine compared to application of chemical suppressants is a reduction of an additional 33 tons of PM, but the annual cost is an additional $200,000. Due to these high costs, we concluded that fabric filters are not BDT for any coal preparation plant processing bituminous coal. Therefore, BDT for affected facilities at coal preparation plants processing bituminous coal is the use of enclosures and chemical suppression. In contrast, for coal preparation plants processing coals other than bituminous coal (the subbituminous mine), we determined that fabric filters do constitute BDT. The high uncontrolled PM emissions of subbituminous coal results in higher chemical costs and more cost effective fabric filters. The cost of a baghouse is $580,000 less than the use of chemicals at a subbituminous mine; the higher control efficiency of fabric filters results in a 230 ton annual decrease in PM emissions. Therefore, since fabric filters provide the highest level of control and are cost effective, they are considered BDT. Lignite has similar uncontrolled PM emissions as subbituminous coal and fabric filters are also considered BDT for coal preparation plants processing lignite. We determined that BDT for new and reconstructed coal preparation plants processing coals other than bituminous coal is enclosure of the affected facilities and venting of emissions through a stack equipped with fabric filters. However, for modified facilities, we determined that enclosure is not BDT. Modified facilities could face technical challenges due to the layout of existing equipment. Therefore, BDT for these facilities is enclosure and venting through a stack equipped with fabric filters only if the affected facility was already enclosed before the modification. For modified facilities at coal preparation plants processing coal other than bituminous coal that are not enclosed prior to the modification BDT is the use of chemical suppressants. A detailed explanation of the emission factors and cost analysis is available in the docket. In addition, we analyzed whether it was appropriate to set a mass PM or an opacity standard for coal processing and conveying equipment, coal storage systems, and transfer and loading systems. As discussed above, we concluded that BDT was enclosure and venting to a stack equipped with fabric filters only for new or reconstructed affected facilities that process coals other than bituminous coals, and modified affected facilities that are enclosed and process coals other than bituminous coals. BDT for processing and conveying equipment, coal storage systems, and transfer and loading systems processing bituminous coal and unenclosed modified processing and conveying equipment, coal storage systems, and transfer and loading systems processing coals other than bituminous coal was determined to be enclosure and the use of chemical suppression. Because it is not technically difficult or economically prohibitive to measure both PM emissions and opacity from sources venting emissions through a stack, we concluded that it was appropriate to set both a PM and opacity standard for new or reconstructed affected facilities that process coals other than bituminous coals, and modified affected facilities that are enclosed and process coals other than bituminous coals. For all other coal processing and conveying equipment, coal storage systems, and transfer and loading systems, we concluded that, at this time, it is appropriate to continue to use only an opacity standard. While measuring emissions of uncontrolled and controlled fugitive PM emissions from coal preparation facilities is technically possible, due to economic limitations it is often not presently practicable to measure the mass of PM emissions for operations that are not vented to a stack. Therefore, we are not proposing to set a separate PM standard for these affected facilities. To identify the opacity standard that reflects the degree of emission limitation achievable through the application of the best demonstrated technology, we reviewed the RBLC database for opacity conditions applied in permits for coal handling facilities. Thirty-eight permits had opacity conditions, all for baghouses. Five of these permit conditions repeat the existing NSPS limit of 20 percent opacity, 1 was at 10 percent, and the remaining 32 were at 5 percent opacity or less. Based on this, we concluded that 5 percent opacity is BDT for a baghouse at a coal preparation plant. To further evaluate the actual performance of fabric filters, we conducted a review of test reports collected in support of the subpart OOO (non-metallic mineral processing facilities) review. These data were recently collected for review of subpart OOO, 40 CFR part 60, and we concluded the results are representative of results that would be expected from baghouses located at coal preparation plants since the size distribution and total mass of PM emissions are similar. We found that the results from all 102 relevant opacity performance tests on baghouses from the review showed maximum opacity readings of 5 percent or less. To determine the appropriate opacity for affected facilities that do not vent PM emissions through a stack, we reviewed 383 Method 9 performance tests on facilities processing non-metallic minerals and using wet suppression (water-mixed surfactant sprays) to control fugitive dust. Again, we concluded that this data is comparable to what could be expected from non-enclosed affected facilities at a coal preparation plant since the size distribution and total uncontrolled PM emissions are similar for affected facilities covered by both subparts. None of the performance tests resulted in any 6-minute opacity readings in excess of 10 percent, and 91 percent of the performance tests had opacity readings of 5 percent or less. Since the assumed BDT for coal preparation plants processing bituminous coal is the use of enclosures and chemical suppressants, which is superior to standard wet suppression technology, we have concluded that an opacity limit of 5 percent is appropriate for new, modified, and reconstructed coal processing equipment. Even though many of the opacity readings are zero, opacity is measured in 5 percent increments. If the observer sees anything at all the minimum opacity they can report is 5 percent. We have concluded that a zero opacity limit is not appropriate since then even the smallest amount of visible emissions for any period would be an excess emission. We concluded that a PM limit of 0.011 g/dcsm (0.0050 gr/dcsf) reflects the degree of emission limitation achievable through the application of the BDT at new or reconstructed affected facilities that process coals other than bituminous coals, and modified affected facilities that are enclosed and process coals other than bituminous coals. To determine what PM limit would be achievable through the application of best demonstrated technology at affected facilities processing coals other than bituminous coal, we reviewed data from the RBLC over the past decade for permit conditions for recent baghouses at coal handling facilities. Twenty-four of the 47 baghouse permits that list the gr/dscf stack limit were at 0.0050 gr/dscf or less, 22 were between 0.0050 and 0.010 gr/dscf, and 1 was above 0.010 gr/dscf. Since the cost difference in designing a baghouse to meet either 0.010 or 0.0050 gr/dscf is insignificant and the majority of new permits require stack limits of 0.0050 gr/dscf, EPA concluded that 0.0050 gr/dscf is BDT for a baghouse at a coal preparation plant. To further evaluate the actual performance of fabric filters, we reviewed performance test data from baghouses installed at affected facilities subject to subpart OOO. These data were recently collected for review of subpart OOO, and we concluded the results are representative of results that would be expected from baghouses located at coal preparation plants. One important distinction is that the majority of baghouses that submitted performance test data for the subpart OOO review had design emissions rates of 0.010 gr/dscf or higher. Of the 143 performance test results, 71 percent had results of 0.0050 gr/dscf or less and 87 percent had results of 0.010 gr/dscf or less. Based on this review, we selected a PM limit of 0.0050 gr/dscf of filterable PM for new or reconstructed affected facilities that process coals other than bituminous coals, and modified affected facilities that are enclosed and process coals other than bituminous coals because it is achievable on a consistent basis for a baghouse designed to achieve 0.0050 gr/dscf. For the same reasons, we also determined that a PM limit of 0.0050 gr/dcsf represented the emissions limitation achievable through the application of BDT at new, modified, and reconstructed pneumatic coal-cleaning equipment. Even though some individual PM performance test results are less then 0.0050 gr/dscf, we have concluded that the permit limit and manufacturer guarantees have an appropriate compliance margin built in. A detailed analysis of the performance test data is available in the docket. We concluded that there are insignificant condensable PM emissions from coal processing and conveying equipment, coal storage systems, and transfer and loading systems and, therefore, decided not to establish a separate PM limit for condensable PM emissions. We also concluded that it was not appropriate to establish separate PM2.5 or PM10 limits. Based on AP-42 emission factors, PM10 accounts for approximately half of the total PM emissions from coal handling operations and PM2.5 accounts for approximately 7 percent. We have concluded that both fabric filters and chemical dust suppressants control PM equally across the size distribution, and setting an overall PM limit is sufficient to control both PM10 and PM2.5. Even if we were to set a PM10 or PM2.5 limit, it would not result in any environmental benefit, but would increase compliance costs due to testing and reporting requirements. In addition, we do not have sufficient performance test data to establish reasonable PM10 and PM2.5 limits that could be achieved on a consistent basis. E. Monitoring and Recordkeeping Requirements We have concluded that it is appropriate to eliminate the opacity limit for affected facilities that use a PM CEMS to monitor emissions. For affected facilities at coal preparation plants, a PM CEMS will give a more direct measurement of the pollutant of interest causing opacity at these facilities (i.e., filterable PM) and provide data in units of the standard. We are not proposing, however, to require all affected facilities to install a PM CEMS, and the opacity standard will continue to apply to all facilities without a PM CEMS. For those facilities that elect not to install PM CEMS, and for those emissions at a source that are not suitable for monitoring by PM CEMS, it is appropriate to retain the opacity standard. For new thermal dryers and pneumatic coal-cleaning equipment for which a PM CEMS is not applied, we are requiring a bag leak detection system. Bag leak detection systems that are based on electromagnetic or other electric charge transfer measurement are sensitive to changes in PM concentration and mass emissions rates. These devices are suitable for detecting changes in PM emissions control that suggests potential compliance problems in need of attention well before significant deterioration in control device operation. Bag leak detection systems in most applications act as early detection alarms but do not provide a measure of actual PM emissions. For this reason, we are proposing to retain the opacity standard for sources applying a bag leak detection system. For monitoring PM emissions from coal processing and conveying equipment, coal storage systems, and transfer and loading systems, we are proposing monthly Method 22 opacity tests. We recognize that there is currently no readily available practical technology for continuously monitoring opacity from sources that do not vent PM emissions to a stack. Method 22 requires an observer, not necessarily certified as a Method 9 observer, to monitor the subject process or area for any visible emissions (i.e., not zero). For a period of time, this observer records all instances and the duration of visible emissions. If the sum of the duration of periods of visible emissions exceeds five percent of the observation period, the source must conduct a Method 9 test to establish compliance with the opacity limit. We are also proposing as an explicit alternative to Method 22 observations the use of a digital photographic technique for detecting visible emissions. The proposed rule references an EPA preliminary method entitled “Determination of Visible Emission Opacity from Stationary Sources Using Computer-Based Photographic Analysis Systems” found at *http://www.epa.gov/tnn/emc/prelim/pre-008.pdf* . For this option, the source owner prepares for approval a site-specific monitoring plan based on this technology. To verify that proper inspections and maintenance procedures are followed, we have concluded that it is necessary for the owner/operator of an affected facility to maintain a logbook. Data in the logbook would include the dates and results of all visual emission observations, the amount of water and/or chemical stabilizer used each month to control PM emissions, and the amount of coal processed each month. IV. Modification and Reconstruction Provisions Existing affected facilities at coal preparation plants that are modified or reconstructed would be subject to the applicable proposed amendments. We have concluded that existing affected facilities that are reconstructed and units that are modified should be able to achieve the proposed limits. Therefore, we are not proposing any amendments to how a facility would conduct the modification and reconstruction analysis. V. Summary of Cost, Environmental, Energy, and Economic Impacts In setting the standards, the CAA requires EPA to consider alternative emission control approaches, taking into account the estimated costs and benefits, as well as energy, solid waste, and other effects. We request comment on whether we have identified the appropriate alternatives and whether the proposed standards adequately take into consideration the incremental effects in terms of emission reductions, energy, and other effects of these alternatives. We will consider the available information in developing the final rule. The costs and environmental, energy, and economic impacts are expressed as incremental differences between the impacts of coal preparation facilities complying with the proposed amendments and the current common permitting authority requirements (i.e., baseline). We used permit data and raw material use data to determine that new coal preparation plants will be built at 2 bituminous mines, 2 subbituminous mines, 1 coke production plant, 6 utility plants, 10 cement manufacturing plants, and 1 industrial site over the next 5 years. However, the controls presently required by State permitting authorities are equivalent to what would be required by the proposed amendments, and the impacts of the proposed amendments will result in limited environmental benefit or increase in control costs over the next 5 years. Therefore, the primary impact resulting from the proposed amendments to subpart Y for coal preparation facilities is a slight increase in recordkeeping costs for new units subject to subpart Y. Compliance with the proposed standards would potentially increase the quantity of coal dust collected by fabric filters over the baseline levels. Depending on the practices used at a given coal preparation plant site, the amended regulation would increase the amount of coal dust the company must dispose of as a solid waste either on-site or off-site. In addition, the use of tree resin emulsions and synthetic polymer emulsions as dust suppressants have minimal environmental impacts, but the use of salts and ligin products can have negative impacts on the environment. Repeated applications of salts may harm nearby vegetation, and ligin products have a high biological oxygen demand in aquatic systems and can lead to fish kills and increases in groundwater concentrations of iron, sulfur compounds, or other pollutants. No significant energy impacts, as measured relative to the regulatory baseline, are expected as a result of the proposed PM limits. The analysis concludes minimal changes in prices and output for the industries affected by the final rule. The price increase for baseload electricity, cement prices, coke prices, and coal prices are insignificant. VI. Request for Comment We request comments on all aspects of the proposed amendments. All significant comments received will be considered in the development and selection of the final amendments and, if appropriate, we will publish a supplemental proposal. We specifically solicit comments on additional amendments that are under consideration. These potential amendments are described below. *BDT for Thermal Dryers.* No new thermal dryers have been installed at bituminous coal mines in the past decade, but two new thermal dryers have been installed at metal production facilities in the past decade. Both of those thermal dryers are fueled by natural gas and use fabric filters to control PM emissions. However, we are not aware of a fabric filter that has been used on a thermal dryer located at a bituminous coal mine. We are requesting comment on whether the high dew point of coal-fired thermal dryer exhaust at bituminous mines could cause potential difficulties with the use of a fabric filter. If we determine that the use of fabric filters at thermal dryers located at bituminous coal mines would not pose any significant technical difficulties and would not be cost prohibitive, we will consider basing the revised PM standard for thermal dryers on the performance of a fabric filter instead of a venturi scrubber. In addition, we are requesting comment on whether the proposed standards for thermal dryers are adequate to control condensable PM, PM2.5, and PM10 or whether additional standards are needed to control these types of PM. *Alternate requirements for an owner or operator of coal processing and conveying equipment, coal storage systems, and coal transfer equipment.* We are requesting comment on if it is appropriate to establish equipment specifications in addition to, as an alternate to, or in place of the opacity standard for affected facilities not venting emissions to a stack. Affected facilities using chemical suppression or an equivalent dust control application typically do not emit through a conveyance designed to capture the PM emissions. In addition, it may not be practical to measure the mass of actual PM emissions from these facilities and work practice standards might be more appropriate. *Expanded coverage.* We are requesting comment on expanding the coverage to include open storage piles by changing the definition of coal storage system. The Coal Handling Emissions Evaluation Roundtable (CHEER) workshop proceedings provide default control efficiencies for different technologies. We are requesting comment on the reliability and validity of these default control efficiencies. We have not developed cost estimates for some of these technologies. Also, we do not presently have information relating different control techniques to specific opacity limits and appropriate monitoring requirements. We request comment on both of these issues. If we were to expand the coverage to include open storage piles, work practice standards might be more appropriate than opacity limits. Our current understanding is that it is difficult to control opacity from open storage piles that are being actively worked at all times, and State permitting authorities often use opacity of open storage piles as an indication that a work practice is required as opposed to a strict limit. *Nonmetallic minerals processing* . We are requesting comment on if it is appropriate to allow owners and operators of a facility processing nonmetallic minerals (as defined by subpart OOO) along with coal at the same property the option of being exempt from the requirements of subpart OOO as long as the nonmetallic mineral(s) is treated as coal for the purposes of compliance with subpart Y. Steam generating units with SO 2 scrubbers and cement manufacturers process limestone along with coal and consolidating the recordkeeping and reporting requirements to a single rule could lower the compliance burden for these facilities while still providing equivalent protection for the environment. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order
(EO)12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the EO. Accordingly, EPA submitted this action to the Office of Management and Budget
(OMB)for review under EO 12866, and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget
(OMB)under the *Paperwork Reduction Act* , 44 U.S.C. 3501 *et seq.* The Information Collection Request
(ICR)document prepared by EPA has been assigned EPA ICR number 1062.10. These proposed amendments to the existing standards of performance for Coal Preparation Plants would add new monitoring, reporting, and recordkeeping requirements. The information would be used by EPA to ensure that any new affected facilities comply with the emission limits and other requirements. Records and reports would be necessary to enable EPA or States to identify new affected facilities that may not be in compliance with the requirements. Based on reported information, EPA would decide which units and what records or processes should be inspected. These proposed amendments would not require any notifications or reports beyond those required by the General Provisions. The recordkeeping requirements require only the specific information needed to determine compliance. These recordkeeping and reporting requirements are specifically authorized by CAA section 114 (42 U.S.C. 7414). All information submitted to EPA for which a claim of confidentially is made will be safeguarded according to EPA policies in 40 CFR part 2, subpart B, Confidentially of Business Information. The annual monitoring, reporting, and recordkeeping burden for this collection averaged over the first 3 years of this ICR is estimated to total 32,664 labor hours per year at an average annual cost of $2,957,707. This estimate includes performance testing, excess emission reports, notifications, and recordkeeping. There are no capital/start-up costs or operational and maintenance costs associated with the monitoring requirements over the 3-year period of the ICR. Burden is defined at 5 CFR 1320.3(b). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a current valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-2008-0260. Submit any comments related to the ICR to EPA and OMB. See ADDRESSES section at the beginning of the notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, *Attention:* Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after April 28, 2008, a comment to OMB is best assured of having its full effect if OMB receives it by May 28, 2008. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of the proposed amendments on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under UMRA section 202, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, UMRA section 205 generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under UMRA section 203 a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that the proposed amendments contain no Federal mandates that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The total annual control and monitoring costs of the proposed amendments, compared to a baseline of no control, at year five is $2 million. Thus, the proposed amendments are not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that the proposed amendments contain no regulatory requirements that might significantly or uniquely affect small governments because the burden is small and the regulation does not unfairly apply to small governments. Therefore, the proposed amendments are not subject to the requirements of UMRA section 203. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the EO to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” These proposed amendments do not have federalism implications. They will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in EO 13132. These proposed amendments will not impose substantial direct compliance costs on State or local governments; they will not preempt State law. Thus, EO 13132 does not apply to these proposed amendments. In the spirit of EO 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on these proposed amendments from State and local officials. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” These proposed amendments do not have tribal implications, as specified in EO 13175. We are not aware of any coal preparation facilities owned by an Indian tribe. Thus, EO 13175 does not apply to these proposed amendments. EPA specifically solicits additional comment on these proposed amendments from tribal officials. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This proposed action is not subject to EO 13045 because it is based solely on technology performance. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This proposed action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this proposed action is not likely to have any adverse energy effects. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113 (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking involves technical standards. EPA has decided to use ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses,” for its manual methods of measuring the oxygen or carbon dioxide content of the exhaust gas. These parts of ASME PTC 19.10-1981 are acceptable alternatives to EPA Method 3B. This standard is available from the American Society of Mechanical Engineers (ASME), Three Park Avenue, New York, NY 10016-5990. The EPA has also decided to use EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, 5, 5D, 9 (40 CFR part 60, appendices A-1 through A-4), or 22 (40 CFR part 60, appendix A-7); and Performance Specification 11 (40 CFR part 60, appendix B). While the Agency has identified 13 VCS as being potentially applicable to these methods cited in this rule, we have decided not to use these standards in this proposed rulemaking. The use of these VCS would have been impractical because they do not meet the objectives of the standards cited in this rule. The search and review results are in the docket for this rule. Under 40 CFR 60.13(i) of the NSPS General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in the final rule and amendments. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this proposed action. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practical and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high adverse human health or environmental effects on any populations, including any minority or low-income population. The proposed amendments would assure that all new coal preparation plants install appropriate controls to limit health impacts to nearby populations. List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: April 16, 2008. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I, part 60, of the Code of the Federal Regulations is proposed to be 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—[Amended] 2. Section 60.17 is amended as follows: a. By revising paragraph (a)(13); b. By removing paragraph (a)(14); c. By redesignating paragraphs (a)(15) through (a)(92) as paragraphs (a)(14) through (a)(91); and d. By revising paragraph (h)(4). § 60.17 Incorporation by reference.
(a)* * *
(13)ASTM D388-77, 90, 91, 95, 98a, 99 (Reapproved 2004), Standard Specification for Classification of Coals by Rank, IBR approved for §§ 60.24(h)(8), 60.41 of subpart D of this part, 60.45(f)(4)(i), 60.45(f)(4)(ii), 60.45(f)(4)(vi), 60.41Da of subpart Da of this part, 60.41b of subpart Db of this part, 60.41c of subpart Dc of this part, 60.251 of subpart Y of this part, and 60.4102.
(h)* * *
(4)ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], IBR approved for § 60.254(c)(3) of subpart Y, Tables 1 and 3 of subpart EEEE, Tables 2 and 4 of subpart FFFF, Table 2 of subpart JJJJ, and § 60.4415(a)(2) and 60.4415(a)(3) of subpart KKKK of this part. Subpart Y—[Amended] 3. Part 60 is amended by revising subpart Y to read as follows: Subpart Y—Standards of Performance for Coal Preparation Plants Sec. 60.250 Applicability and designation of affected facility. 60.251 Definitions. 60.252 Standards for particulate matter. 60.253 Monitoring of operations. 60.254 Test methods and procedures. 60.255 Reporting and recordkeeping. Subpart Y—Standards of Performance for Coal Preparation Plants § 60.250 Applicability and designation of affected facility.
(a)The provisions of this subpart are applicable to any of the following affected facilities in coal preparation plants which process more than 181 Mg (200 tons) per day: Thermal dryers, pneumatic coal-cleaning equipment (air tables), coal processing and conveying equipment (including breakers and crushers), coal storage systems, and transfer and loading systems.
(b)Any affected facility under paragraph
(a)of this section that commences construction, reconstruction, or modification after October 24, 1974, is subject to the requirements of this subpart. § 60.251 Definitions. As used in this subpart, all terms not defined herein have the meaning given them in the Act and in subpart A of this part. *Bag leak detection system* means a system that is capable of continuously monitoring relative particulate matter (dust loadings) in the exhaust of a fabric filter to detect bag leaks and other upset conditions. A bag leak detection system includes, but is not limited to, an instrument that operates on triboelectric, light scattering, light transmittance, or other effect to continuously monitor relative particulate matter loadings. *Bituminous coal* means solid fossil fuel classified as bituminous coal by ASTM Designation D388 (incorporated by reference—see § 60.17). *Coal* means all solid fossil fuels classified as anthracite, bituminous, subbituminous, or lignite by ASTM Designation D388 (incorporated by reference—see § 60.17). *Coal preparation plant* means any facility (excluding underground mining operations) which prepares coal by one or more of the following processes: Breaking, crushing, screening, wet or dry cleaning, and thermal drying. *Coal processing and conveying equipment* means any machinery used to reduce the size of coal or to separate coal from refuse, and the equipment used to convey coal to or remove coal and refuse from the machinery. This includes, but is not limited to, breakers, crushers, screens, and conveying systems. *Coal storage system* means any facility used to store coal except for open storage piles. *Cyclonic flow* means a spiraling movement of exhaust gases within a duct or stack. *Pneumatic coal-cleaning equipment* means any facility which classifies bituminous coal by size or separates bituminous coal from refuse by application of air stream(s). *Thermal dryer* means any facility in which the moisture content of bituminous coal is reduced by contact with a heated gas stream which is exhausted to the atmosphere. *Transfer and loading system* means any facility used to transfer and load coal for shipment. § 60.252 Standards for particulate matter.
(a)*Thermal dryers.* On and after the date on which the initial performance test is completed or required to be completed under § 60.8, the owner or operator of thermal dryers subject to the provisions of this subpart must meet the requirements in paragraphs (a)(1) through
(3)of this section, as applicable to the affected facility.
(1)For each thermal dryer constructed, reconstructed, or modified on or before April 28, 2008, the owner or operator must ensure that emissions discharged into the atmosphere from the affected facility:
(i)Do not contain particulate matter in excess of 0.070 g/dscm (0.031 gr/dscf); and
(ii)Do not exhibit 20 percent opacity or greater.
(2)For each thermal dryer constructed, reconstructed, or modified after April 28, 2008, the owner or operator must ensure that emissions discharged into the atmosphere from the affected facility do not contain particulate matter in excess of 0.046 g/dscm (0.020 gr/dscf).
(3)For each thermal dryer constructed, reconstructed, or modified after April 28, 2008 that does not use a particulate matter continuous emissions monitoring system (PM CEMS) according to the requirements § 60.253(e), the owner or operator must ensure that emissions discharged into the atmosphere from the affected facility do not exhibit 20 percent opacity or greater.
(b)*Pneumatic coal-cleaning equipment.* On and after the date on which the initial performance test is completed or required to be completed under § 60.8, the owner or operator of pneumatic coal-cleaning equipment subject to the provisions of this subpart must meet the requirements in paragraphs (b)(1) through
(3)of this section, as applicable to the affected facility.
(1)For each pneumatic coal-cleaning equipment constructed, reconstructed, or modified on or before April 28, 2008, the owner or operator must ensure that emissions discharged into the atmosphere from the affected facility:
(i)Do not contain particulate matter in excess of 0.040 g/dscm (0.017 gr/dscf); and
(ii)Do not exhibit 10 percent opacity or greater.
(2)For each pneumatic coal-cleaning equipment constructed, reconstructed, or modified after April 28, 2008, the owner or operator must ensure that emissions discharged into the atmosphere from the affected facility do not contain particulate matter in excess of 0.011 g/dscm (0.0050 gr/dscf).
(3)For each pneumatic coal-cleaning equipment constructed, reconstructed, or modified after April 28, 2008 and that does not use a PM CEMS according to the requirements in § 60.253(e), the owner or operator must ensure that emissions discharged into the atmosphere from the affected facility do not exhibit 5 percent opacity or greater.
(c)*Coal processing and conveying equipment, coal storage systems, and coal transfer systems.* On and after the date on which the initial performance test is completed or required to be completed under § 60.8, the owner or operator of coal processing and conveying equipment, coal storage systems, and transfer and loading systems subject to the provisions of this subpart must meet the requirements in paragraph (c)(1) or
(2)of this section as applicable to the affected facility.
(1)For each coal processing and conveying equipment, coal storage system, and transfer and loading system constructed, reconstructed, or modified on or before April 28, 2008, the owner or operator must ensure that emissions discharged into the atmosphere from the affected facility do not exhibit 20 percent opacity or greater.
(2)For each coal processing and conveying equipment, coal storage system, and transfer and loading system constructed, reconstructed, or modified after April 28, 2008, the owner or operator must meet the requirements in paragraphs (c)(2)(i) through
(iii)of this section, as applicable to each affected facility.
(i)For each affected facility that does not use a PM CEMS according to the requirements in § 60.253(e), the owner or operator must ensure that emissions discharged into the atmosphere from the affected facility do not exhibit 5 percent opacity or greater.
(ii)For each new and reconstructed affected facility that processes, conveys, stores, transfers, or loads coals, except those that exclusively process, convey, store, transfer, or load bituminous coal, must vent all emissions through a stack and ensure that emissions discharged into the atmosphere from the affected facility do not contain particulate matter in excess of 0.011 g/dscm (0.0050 gr/dscf).
(iii)For each modified affected facility that was in an enclosure prior to the modification and that processes, conveys, stores, transfers, or loads coals, except those that exclusively process, convey, store, transfer, or load bituminous coal must vent all emissions through a stack and ensure that emissions discharged into the atmosphere from the affected facility do not contain particulate matter in excess of 0.011 g/dscm (0.0050 gr/dscf).
(d)Owners and operators of affected facilities constructed, reconstructed, or modified after April 28, 2008 that are subject to a particulate matter emissions limit in this section and do not use a PM CEMS according to the requirements of § 60.253(e) must demonstrate compliance with the applicable particulate matter emissions limit by conducting an initial performance test and, thereafter, an annual performance test according to the requirements in § 60.254(c). § 60.253 Monitoring of operations.
(a)The owner or operator of any thermal dryer constructed, reconstructed, or modified on or before April 28, 2008 shall install, calibrate, maintain, and continuously operate monitoring devices as follows:
(1)A monitoring device for the measurement of the temperature of the gas stream at the exit of the thermal dryer on a continuous basis. The monitoring device is to be certified by the manufacturer to be accurate within ±1.7 °C (±3 °F).
(2)For affected facilities that use a venturi scrubber emissions control equipment:
(i)A monitoring device for the continuous measurement of the pressure loss through the venturi constriction of the control equipment. The monitoring device is to be certified by the manufacturer to be accurate within ±1 inch water gauge.
(ii)A monitoring device for the continuous measurement of the water supply pressure or water flow rate to the control equipment. The monitoring device is to be certified by the manufacturer to be accurate within ±5 percent of design water supply pressure or flow rate. The pressure sensor or tap or flow rate sensor must be located close to the water discharge point. The Administrator may be consulted for approval of alternative locations.
(b)All monitoring devices under paragraph
(a)of this section are to be recalibrated annually in accordance with procedures under § 60.13(b).
(c)The owner or operator of each thermal dryer and pneumatic coal-cleaning equipment constructed, reconstructed, or modified after April 28, 2008 must install, calibrate, maintain, and continuously operate the monitoring devices specified in paragraphs (c)(1) through
(3)of this section, as applicable, except as provided for in paragraph
(d)of this section.
(1)For a thermal dryer, a monitoring device for the measurement of the temperature of the gas stream at the exit of the thermal dryer on a continuous basis. The monitoring device is to be certified by the manufacturer to be accurate within ±1.7 °C (±3 °F).
(2)For a fabric filter (baghouse), a bag leak detection system according to the requirements in paragraph
(f)of this section.
(3)For a venturi scrubber, monitoring devices according to the requirements in paragraphs (c)(3)(i) and
(ii)of this section.
(i)A monitoring device for the continuous measurement of the pressure loss through the venturi constriction of the control equipment. The monitoring device is to be certified by the manufacturer to be accurate within ±1 inch water gauge.
(ii)A monitoring device for the continuous measurement of the water supply pressure or water flow rate to the control equipment. The monitoring device is to be certified by the manufacturer to be accurate within ±5 percent of design water supply pressure or flow rate. The pressure sensor or tap or flow rate sensor must be located close to the water discharge point.
(d)The monitoring requirements in paragraph
(c)of this section do not apply to an affected facility if the owner or operator installs, calibrates, maintains, and continuously operates at that facility a particulate matter continuous emission monitoring system (PM CEMS) according the requirements in paragraph
(e)of this section.
(e)Each PM CEMS used in lieu of the monitoring requirements in paragraph
(c)of this section must be installed, calibrated, maintained, and continuously operated according to the requirements in paragraphs (e)(1) through
(4)of this section.
(1)You must install, certify, operate, and maintain the PM CEMS according to Performance Specification 11 in appendix B of this part and procedure 2 in appendix F of this part.
(2)You must conduct a performance evaluation of the PM CEMS according to the applicable requirements of § 60.13, Performance Specification 11 in appendix B of this part, and procedure 2 in appendix F of this part.
(3)During each relative accuracy test run of the PM CEMS required by Performance Specification 11 in appendix B of this part, collect the particulate matter and stack gas molecular weight data concurrently (or within a 30- to 60-minute period) with both the PM CEMS and the performance testing using the following test methods.
(i)For particulate matter, Method 5 of Appendix A-3 of this part shall be used.
(ii)For stack gas molecular weight determination, Method 3, 3A, or 3B of Appendix A-2 of this part, as applicable shall be used.
(4)Quarterly accuracy determinations and daily calibration drift tests shall be performed in accordance with procedure 2 in appendix F of this part.
(f)Each bag leak detection system used to comply with the monitoring requirements of this subpart must be installed, calibrated, maintained, and continuously operated according to the requirements in paragraphs (f)(1) through
(3)of this section.
(1)The bag leak detection system must meet the specifications and requirements in paragraphs (f)(1)(i) through
(viii)of this section.
(i)The bag leak detection system must be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 1 milligram per dry standard cubic meter (0.00044 grains per actual cubic foot) or less.
(ii)The bag leak detection system sensor must provide output of relative PM loadings. The owner or operator shall continuously record the output from the bag leak detection system using electronic or other means (e.g., using a strip chart recorder or a data logger).
(iii)The bag leak detection system must be equipped with an alarm system that will sound when the system detects an increase in relative particulate loading over the alarm set point established according to paragraph (f)(2) of this section, and the alarm must be located such that it can be heard or otherwise observed by the appropriate plant personnel.
(iv)In the initial adjustment of the bag leak detection system, you must establish, at a minimum, the baseline output by adjusting the sensitivity (range) and the averaging period of the device, the alarm set points, and the alarm delay time.
(v)Following initial adjustment, you shall not adjust the averaging period, alarm set point, or alarm delay time without approval from the Administrator or delegated authority except as provided in paragraph (f)(2) of this section.
(vi)Once per quarter, you may adjust the sensitivity of the bag leak detection system to account for seasonal effects, including temperature and humidity, according to the procedures identified in the site-specific monitoring plan required by paragraph (f)(2) of this section.
(vii)You must install the bag leak detection sensor downstream of the fabric filter.
(viii)Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(2)You must develop and submit to the Administrator or delegated authority for approval a site-specific monitoring plan for each bag leak detection system. You must operate and maintain the bag leak detection system according to the site-specific monitoring plan at all times. Each monitoring plan must describe the items in paragraphs (f)(2)(i) through
(vi)of this section.
(i)Installation of the bag leak detection system;
(ii)Initial and periodic adjustment of the bag leak detection system, including how the alarm set-point will be established;
(iii)Operation of the bag leak detection system, including quality assurance procedures;
(iv)How the bag leak detection system will be maintained, including a routine maintenance schedule and spare parts inventory list;
(v)How the bag leak detection system output will be recorded and stored; and
(vi)Corrective action procedures as specified in paragraph (f)(3) of this section. In approving the site-specific monitoring plan, the Administrator or delegated authority may allow owners and operators more than 3 hours to alleviate a specific condition that causes an alarm if the owner or operator identifies in the monitoring plan this specific condition as one that could lead to an alarm, adequately explains why it is not feasible to alleviate this condition within 3 hours of the time the alarm occurs, and demonstrates that the requested time will ensure alleviation of this condition as expeditiously as practicable.
(3)For each bag leak detection system, you must initiate procedures to determine the cause of every alarm within 1 hour of the alarm. Except as provided in paragraph (f)(2)(vi) of this section, you must address the cause of the alarm within 3 hours of the alarm by taking whatever corrective action(s) are necessary. Corrective actions may include, but are not limited to the following:
(i)Inspecting the fabric filter for air leaks, torn or broken bags or filter media, or any other condition that may cause an increase in PM emissions;
(ii)Sealing off defective bags or filter media;
(iii)Replacing defective bags or filter media or otherwise repairing the control device;
(iv)Sealing off a defective fabric filter compartment;
(v)Cleaning the bag leak detection system probe or otherwise repairing the bag leak detection system; or
(vi)Shutting down the process producing the PM emissions.
(g)An owner or operator of a coal processing and conveying equipment, coal storage systems, or transfer and loading system with an applicable opacity limit that commenced construction, reconstruction, or modification after April 28, 2008 must comply with the requirements in paragraphs (g)(1) and
(2)of this section.
(1)Monitor visible emissions from each affected facility according to the requirements in either paragraph (g)(1)(i) or
(ii)of this section.
(i)Conduct a series of three 1-hour observations (during normal operation) at least once per calendar month that the coal preparation plant operates using Method 22 of Appendix A-7 of this part at the affected facility and demonstrate that the sum of the occurrences of any visible emissions at each affected facility is not in excess of 5 percent of the observation period (i.e., 9 minutes per 3-hour period); or
(ii)Prepare and implement a written site-specific monitoring plan based on the application of a digital opacity compliance system that has been approved by the Administrator. The observations should include at least one digital image every 15 seconds for three separate 1-hour periods (during normal operation) every calendar month that the coal preparation plant operates. An approvable monitoring plan should include a demonstration that the occurrences of visible emissions are not in excess of 5 percent of the observation period (i.e., 36 observations per 3-hour period). For reference purposes in preparing the monitoring plan, see OAQPS “Determination of Visible Emission Opacity from Stationary Sources Using Computer-Based Photographic Analysis Systems.” This document is available from the U.S. Environmental Protection Agency (U.S. EPA); Office of Air Quality and Planning Standards; Sector Policies and Programs Division; Measurement Group (D243-02), Research Triangle Park, NC 27711. This document is also available on the Technology Transfer Network
(TTN)under Emission Measurement Center Preliminary Methods ( *http://www.eps.gov/tnn/emc/prelim/pre-008.pdf* ).
(2)For each observation period resulting in cumulative visible emissions periods in excess of 5 percent of the observation period, the owner or operator must conduct an opacity performance test with Method 9 of Appendix A-4 of this part to verify compliance within 24 hours from the day on which the observations were made. § 60.254 Test methods and procedures.
(a)In conducting the performance tests required in § 60.8 for affected facilities constructed, reconstructed, or modified on or before April 28, 2008, the owner or operator shall use as reference methods and procedures the test methods in appendices A-1 through A-8 of this part or other methods and procedures as specified in this section, except as provided in § 60.8(b).
(b)The owner or operator of an affected facility constructed, reconstructed, or modified after April 28, 2008 shall use the following procedures to measure particular matter emissions from that facility:
(1)Method 5 of Appendix A-3 of this part shall be used to determine the particulate matter concentration. The sampling time and sample volume for each run shall be at least 60 minutes and 0.85 dscm (30 dscf). Sampling shall begin no less than 30 minutes after startup and shall terminate before shutdown procedures begin.
(2)Method 9 of Appendix A-4 of this part and the procedures in § 60.11 shall be used to determine opacity from all affected facilities except those that do not vent PM emissions through a stack.
(3)Method 9 of Appendix A-4 of this part, the procedures in § 60.11, and the additional procedures in paragraphs (b)(3)(i) through
(iii)of this section shall be used to determine opacity from affected facilities that do not vent PM emissions through a stack.
(i)The minimum distance between the observer and the emission source shall be 5.0 meters (16 feet), and the sun shall be oriented in the 140-degree sector of the back.
(ii)The observer shall select a position that minimizes interference from other emission sources and make observations such that the line of vision is approximately perpendicular to the plume and wind direction.
(iii)Make opacity observations at the point of greatest opacity in that portion of the plume where condensed water vapor is not present. Water vapor is not considered a visible emission.
(c)For each affected facility subject to a particulate matter emission limit in § 60.252 that is constructed, reconstructed, or modified after April 28, 2008 the owner or operator must conduct each performance test according to § 60.8 using the test methods and procedures in paragraphs (c)(1) through
(5)of this section.
(1)Method 1 or 1A (40 CFR part 60, appendix A-1) to select sampling port locations and the number of traverse points in each stack or duct. Sampling sites must be located at the outlet of the control device (or at the outlet of the emissions source if no control device is present) prior to any releases to the atmosphere.
(2)Method 2, 2A, 2C, 2D, 2F (40 CFR part 60, appendix A-1), or 2G (40 CFR part 60, appendix A-2) to determine the volumetric flow rate of the stack gas.
(3)Method 3, 3A, or 3B (40 CFR part 60, appendix A-2) to determine the dry molecular weight of the stack gas. You may use ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses” (incorporated by reference—see § 63.14) as an alternative to Method 3B (40 CFR part 60, appendix A-2).
(4)Method 4 (40 CFR part 60, appendix A-3) to determine the moisture content of the stack gas.
(5)Method 5 (40 CFR part 60, appendix A-3) to determine the PM concentration or Method 5D (40 CFR part 60, appendix A-3) for positive pressure fabric filter. A minimum of three valid test runs comprise a particulate matter performance test.
(d)For each affected facility subject to an opacity limit in § 60.252 that is constructed, reconstructed, or modified after April 28, 2008, the owner or operator must conduct the performance test as follows:
(1)Method 9 of Appendix A-4 of this part and the procedures in § 60.11 shall be used to determine opacity from all affected facilities except those that do not vent PM emissions through a stack.
(2)Method 9 of Appendix A-4 of this part, the procedures in § 60.11, and the additional procedures in paragraphs (d)(2)(i) through
(iii)of this section shall be used to determine opacity from affected facilities that do not vent PM emissions through a stack.
(i)The minimum distance between the observer and the emission source shall be 5.0 meters (16 feet), and the sun shall be oriented in the 140-degree sector of the back.
(ii)The observer shall select a position that minimizes interference from other emission sources and make observations such that the line of vision is approximately perpendicular to the plume and wind direction.
(iii)Make opacity observations at the point of greatest opacity in that portion of the plume where condensed water vapor is not present. Water vapor is not considered a visible emission. § 60.255 Reporting and recordkeeping.
(a)An owner or operator of a coal preparation plant that commenced construction, reconstruction, or modification after April 28, 2008 shall maintain in a logbook (written or electronic) on-site and made available upon request. The logbook shall record the following:
(1)The date and time of periodic coal preparation plant facility opacity observations noting those sources with emissions above the action level along with the results of the corresponding opacity performance test.
(2)The amount and type of coal processed each calendar month.
(3)The amount of chemical stabilizer or water purchased for use in the coal preparation plant.
(4)Monthly certification that the dust suppressant systems were operational when any coal was processed and that manufacturer recommendations were followed for all control systems.
(b)[RESERVED] [FR Doc. E8-9104 Filed 4-25-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Parts 523, 531, 533, 534, 536 and 537 [Docket No. NHTSA-2008-0060] Supplemental Notice of Public Scoping for an Environmental Impact Statement for New Corporate Average Fuel Economy Standards AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Supplemental notice of public scoping; further request for scoping comments. SUMMARY: On March 28, 2008, NHTSA announced plans to prepare an Environmental Impact Statement
(EIS)pursuant to the National Environmental Policy Act
(NEPA)to address the potential environmental impacts of the agency's Corporate Average Fuel Economy program for passenger automobiles (referred to herein as “passenger cars”) and non-passenger automobiles (referred to herein as “light trucks”). Specifically, NHTSA announced its intent to prepare an EIS to consider the potential environmental impacts of new fuel economy standards for model year 2011-2015 passenger cars and light trucks that NHTSA is proposing pursuant to the Energy Independence and Security Act of 2007. At the same time, NHTSA initiated the NEPA scoping process by inviting Federal, State, and local agencies, Indian tribes, and the public to help identify the environmental issues and reasonable alternatives to be examined in the EIS by providing public comments related to the scope of NHTSA's NEPA analysis. This supplemental notice provides additional guidance for participating in the scoping process and additional information about the proposed standards and the alternatives NHTSA expects to consider in its NEPA analysis. DATES: The scoping process will culminate in the preparation and issuance of a Draft EIS, which will be made available for public comment. Interested persons are requested to submit their scoping comments as soon as possible. To ensure that NHTSA has an opportunity to consider scoping comments and to facilitate NHTSA's prompt preparation of the Draft EIS, scoping comments should be received on or before May 28, 2008, although NHTSA will try to consider comments received after this date to the extent the NEPA and rulemaking schedules allow. ADDRESSES: You may submit comments to the docket number identified in the heading of this document by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. • *Mail:* Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery or Courier:* U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. Eastern time, Monday through Friday, except Federal holidays. • *Fax:* 202-493-2251. Regardless of how you submit your comments, you should mention the docket number of this document. You may call the Docket at 202-366-9324. Note that all comments received, including any personal information provided, will be posted without change to *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: For technical issues, contact Carol Hammel-Smith, Fuel Economy Division, Office of International Vehicle, Fuel Economy and Consumer Standards, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: 202-366-5206. For legal issues, contact Kerry E. Rodgers, Vehicle Safety Standards & Harmonization Division, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: 202-366-9511. SUPPLEMENTARY INFORMATION: In a companion notice of proposed rulemaking (NPRM), NHTSA is proposing Corporate Average Fuel Economy
(CAFE)standards for model year
(MY)2011-2015 passenger cars and light trucks pursuant to the amendments made by the Energy Independence and Security Act of 2007
(EISA)to the Energy Policy and Conservation Act (EPCA). 1 In connection with this action, NHTSA has begun preparing an Environmental Impact Statement
(EIS)to address the potential environmental impacts of the proposed standards and reasonable alternative standards in the context of NHTSA's CAFE program pursuant to the National Environmental Policy Act
(NEPA)and implementing regulations issued by the Council on Environmental Quality
(CEQ)and NHTSA. 2 NEPA instructs Federal agencies to consider the potential environmental impacts of their proposed actions and possible alternatives in their decisionmaking. To inform decisionmakers and the public, the EIS will compare the environmental impacts of the agency's proposal and reasonable alternatives, including a “no action” alternative. The EIS will consider direct, indirect, and cumulative impacts and should discuss impacts “in proportion to their significance.” 1 EISA is Public Law 110-140, 121 Stat. 1492 (December 19, 2007). EPCA is codified at 49 U.S.C. 32901 *et seq.* 2 NEPA is codified at 42 U.S.C. 4321-4347. CEQ's NEPA implementing regulations are codified at 40 CFR 1500-1508, and NHTSA's NEPA implementing regulations are codified at 49 CFR Part 520. In March 2008, NHTSA issued a notice of intent to prepare an EIS for the MY 2011-2015 CAFE standards and opened the NEPA “scoping” process. In that notice, NHTSA described the statutory requirements for the proposed standards, provided initial information about the NEPA process, and initiated scoping by requesting public input on the scope of NHTSA's NEPA analysis for the proposed standards. 3 NHTSA also stated that it would describe the proposed standards and the possible alternatives NHTSA expects to consider for purposes of its NEPA analysis in its NPRM and in a separate scoping notice that would provide further guidance about the scoping process. This document constitutes that supplemental scoping notice. 3 *See* Notice of Intent to Prepare an Environmental Impact Statement for New Corporate Average Fuel Economy Standards, 73 FR 16615, March 28, 2008, *available at http://www.nhtsa.dot.gov/portal/site/nhtsa/menuitem.43ac99aefa80569eea57529cdba046a0/* (last visited March 26, 2008). *Background.* EPCA sets forth extensive requirements concerning the rulemaking to establish MY 2011-2015 CAFE standards. It requires the Secretary of Transportation 4 to establish average fuel economy standards at least 18 months before the beginning of each model year and to set them at “the maximum feasible average fuel economy level that the Secretary decides the manufacturers can achieve in that model year.” When setting “maximum feasible” fuel economy standards, the Secretary is required to “consider technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy.” 5 NHTSA construes the statutory factors as including environmental and safety considerations. 6 NHTSA also will consider environmental impacts under NEPA when setting CAFE standards. 4 NHTSA is delegated responsibility for implementing the EPCA fuel economy requirements assigned to the Secretary of Transportation. 49 CFR 1.50, 501.2(a)(8). 5 49 U.S.C. 32902(a), 32902(f). 6 *See, e.g., Competitive Enterprise Inst.* v. *NHTSA,* 956 F.2d 321, 322 (D.C. Cir. 1992) (citing *Competitive Enterprise Inst.* v. *NHTSA,* 901 F.2d 107, 120 n.11 (D.C. Cir. 1990)). As recently amended, EPCA further directs the Secretary, after consultation with the Secretary of Energy
(DOE)and the Administrator of the Environmental Protection Agency (EPA), to establish separate average fuel economy standards for passenger cars and for light trucks manufactured in each model year beginning with model year 2011 “to achieve a combined fuel economy average for model year 2020 of at least 35 miles per gallon for the total fleet of passenger and non-passenger automobiles manufactured for sale in the United States for that model year.” 7 In doing so, the Secretary of Transportation is required to increase average fuel economy standards for MY 2011-2020 vehicles through “annual fuel economy standard increases.” 8 The standards for passenger cars and light trucks must be “based on 1 or more vehicle attributes related to fuel economy.” In any single rulemaking, standards may be established for not more than five model years. 9 EPCA also mandates a minimum standard for domestically manufactured passenger cars. 10 7 49 U.S.C.A. 32902(b)(1), 32902(b)(2)(A). 8 49 U.S.C.A. 32902(b)(2)(C). 9 49 U.S.C.A. 32902(b)(3)(A), 32902(b)(3)(B). 10 49 U.S.C.A. 32902(b)(4). Earlier this year, NHTSA initiated the EIS process for MY 2011-2015 CAFE standards, which include light truck standards for one model year previously covered by the 2006 Rule (MY 2011). 11 We did so because a standard for MY 2011 must be issued by the end of March 2009 and achieving an industry-wide combined fleet average of at least 35 miles per gallon for MY 2020 depends, in substantial part, upon setting standards well in advance so as to provide the automobile manufacturers with as much lead time as possible to make the extensive necessary changes to their automobiles. 11 In preparing an EIS for the MY 2011-2015 CAFE standards, NHTSA intends to consider issues raised in litigation concerning a 2006 final rule, “Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011,” 71 FR 17,566, April 6, 2006 (2006 Rule). *See Center for Biological Diversity* v. *NHTSA,* 508 F.3d 508, 514, 545-58 (9th Cir. 2007) (holding, among other things, that NHTSA did not prepare an adequate environmental assessment under NEPA and ordering the agency to prepare an EIS). The Government is presently seeking rehearing in the Ninth Circuit on the appropriateness of the Court's remedy. *The Proposed Action and Possible Alternatives:* NHTSA's companion NPRM proposes attribute-based (vehicle size) fuel economy standards for passenger cars and light trucks consistent with the “Reformed CAFE” approach NHTSA used to establish standards for MY 2008-2011 light trucks. 12 The NPRM proposes separate standards for MY 2011-2015 passenger cars and separate standards for MY 2011-2015 light trucks. This notice briefly describes the proposed standards and the possible alternatives discussed in the NPRM. For more detailed discussion of those alternatives, please see the NPRM. 12 *See* 71 FR 17,566, 17,587-17,625, April 6, 2006 (describing that approach). Under the proposed standards, each vehicle manufacturer's required level of CAFE would be based on target levels of average fuel economy set for vehicles of different sizes and on the distribution of that manufacturer's vehicles among those sizes. Size would be defined by vehicle footprint. 13 The level of the performance target for each footprint would reflect the technological and economic capabilities of the industry. The target for each footprint would be the same for all manufacturers, regardless of differences in their overall fleet mix. Compliance would be determined by comparing a manufacturer's harmonically averaged fleet fuel economy levels in a model year with a required fuel economy level calculated using the manufacturer's actual production levels and the targets for each footprint of the vehicles that it produces. 13 A vehicle's “footprint” is generally defined as “the product of track width [the lateral distance between the centerlines of the base tires at ground, including the camber angle * * * times wheelbase [the longitudinal distance between front and rear wheel centerlines] * * * divided by 144. * * *” 49 CFR 523.2. In developing the proposed standards and possible alternatives, NHTSA considered the four EPCA factors underlying maximum feasibility (technological feasibility, economic practicability, the effect of other standards of the Government on fuel economy, and the need of the nation to conserve energy) as well as relevant environmental and safety considerations. NHTSA used a computer model (known as the “Volpe model”) that, for any given model year, applies technologies to a manufacturer's fleet until the manufacturer achieves compliance with the standard under consideration. In light of the EPCA factors, the agency placed monetary values on relevant externalities (both energy security and environmental externalities, including the benefits of reductions in carbon dioxide (CO <sup>2</sup> ) emissions). As discussed in the NPRM, NHTSA also consulted with EPA and DOE regarding a wide variety of matters. After assessing what fuel saving technologies would be available, how effective they are, and how quickly they could be introduced, NHTSA balanced the EPCA factors relevant to standard-setting. The agency used a marginal benefit-cost analysis to set the proposed standards at levels such that, considering the seven largest manufacturers, the cost of the last technology application equaled the benefits of the improvement in fuel economy resulting from that application. That is the level at which net benefits are maximized. Accordingly, NHTSA refers to the proposed standards as “optimized” standards or the “optimized scenario”. In considering further action on the proposed standards and reasonable alternatives, NHTSA will consider the NEPA analysis that results from the scoping process described in this notice. NHTSA projects what the industry-wide average fuel economy level would be for passenger cars and for light trucks if each manufacturer produced its expected mix of automobiles and exactly met its obligations under the proposed “optimized” standards for each model year. For passenger cars, the average fuel economy (in miles per gallon, or mpg) would range from 31.2 mpg in MY 2011 to 35.7 mpg in MY 2015. For light trucks, the average fuel economy would range from 25.0 mpg in MY 2011 to 28.6 mpg in MY 2015. The combined industry-wide average fuel economy for all passenger cars and light trucks would range from 27.8 mpg in MY 2011 to 31.6 mpg in MY 2015, if each manufacturer exactly met its obligations under the standards proposed in the NPRM. 14 14 NHTSA notes that it cannot set out the precise level of CAFE that each manufacturer would be required to meet for each model year under the proposed standards, because the level for each manufacturer would depend on that manufacturer's final production figures and fleet mix for a particular model year. That information will not be available until the end of each model year. Under the proposed standards, the annual average increase during the five-year period from MY 2011-MY 2015 would be approximately 4.5 percent. The annual percentage increases would be greater in the early years due to the uneven distribution of new model introductions during this period and to the fact that significant technological changes can be most readily made in conjunction with those introductions. 15 Pursuant to EISA's mandate, domestically manufactured passenger car fleets also must meet an alternative minimum standard for each model year. The alternative minimum standard would range from 28.7 mpg in MY 2011 to 32.9 mpg in MY 2015 under NHTSA's proposal. 15 With the proposed standards, the combined industry-wide average fuel economy would have to increase by an average of 2.1 percent per year from MY 2016 -MY 2020 in order to reach EISA's goal of at least 35 mpg by MY 2020. In addition, the NPRM discusses flexibility mechanisms available to manufacturers to meet their obligations. In addition to the proposed standards, NHTSA has considered several regulatory alternatives for purposes of Executive Order 12,866. 16 NHTSA anticipates that those alternatives, plus a “no action” alternative as required by NEPA, will form the framework of the agency's alternatives analysis under NEPA. The alternatives, in order of increasing stringency, are: 16 Exec. Order 12,866, “Regulatory Planning and Review,” 58 FR 51,735, October 4, 1993, as amended.
(1)A “no action” alternative of maintaining CAFE standards at the MY 2010 levels of 27.5 mpg and 23.5 mpg for passenger cars and light trucks, respectively. 17 NEPA requires agencies to consider a “no action” alternative in their NEPA analyses, although the recent amendments to EPCA direct NHTSA to set new CAFE standards and do not permit the agency to take no action on fuel economy. (NHTSA also refers to this “no action” alternative as a “no increase” or “baseline” alternative.) 17 *See* 40 CFR 1502.2(e), 1502.14(d).
(2)An alternative reflecting standards that fall below the optimized scenario by the same absolute amount by which the “25 percent above optimized alternative” (described below) exceeds the optimized scenario. NHTSA refers to this as the “25 percent below optimized alternative”.
(3)An alternative reflecting the “optimized scenario,” the proposed standards based on applying technologies until net benefits are maximized.
(4)An alternative reflecting standards that exceed the optimized scenario by 25 percent of the interval between the optimized scenario and an alternative (described below) based on applying technologies until total costs equal total benefits. NHTSA refers to this alternative as the “25 percent above optimized alternative.”
(5)An alternative reflecting standards that exceed the optimized scenario by 50 percent of the interval between the optimized scenario and the alternative based on applying technologies until total costs equal total benefits. This alternative is known as the “50 percent above optimized alternative”.
(6)An alternative reflecting standards based on applying technologies until total costs equal total benefits (zero net benefits). This is known as the “TC=TB alternative”.
(7)A “technology exhaustion alternative” in which NHTSA applied all feasible technologies without regard to cost by determining the stringency at which a reformed CAFE standard would require every manufacturer to apply every technology estimated to be potentially available for its MY 2011-2015 fleet. Accordingly, the penetration rates for particular technologies would vary on an individual manufacturer basis. NHTSA has presented this alternative in order to explore how the stringency of standards would vary based solely on the potential availability of technologies at the individual manufacturer level. Under NEPA, the purpose of and need for an agency's action inform the range of reasonable alternatives to be considered in its NEPA analysis. 18 NHTSA believes that these alternatives represent a reasonable range of stringencies to consider for purposes of evaluating the potential environmental impacts of proposed CAFE standards under NEPA, because these alternatives represent a wide spectrum of potential impacts ranging from the current standards to standards based on the maximum technology expected to be available over the period necessary to meet the statutory goals of EPCA, as amended by EISA. 19 However, as discussed in the NPRM, NHTSA's provisional analysis of these alternatives suggests that some of them may not satisfy the four EPCA factors that NHTSA must apply in setting “maximum feasible” CAFE standards ( *i.e.* , technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the nation to conserve energy). Please see the companion NPRM for further discussion of these alternatives and for background on why NHTSA has identified these alternatives. As indicated below, NHTSA invites comments to ensure that the agency's NEPA analysis for the proposed standards addresses a full range of reasonable alternatives and identifies all potentially significant impacts related to each. Comments may go beyond the approaches and information that NHTSA used in developing the proposed standards and the above alternatives. 18 40 CFR 1502.13. 19 Given EPCA's mandate that NHTSA consider specific factors in setting CAFE standards and NEPA's instruction that agencies give effect to NEPA's policies “to the fullest extent possible,” NHTSA recognizes that a very large number of alternative CAFE levels are potentially conceivable and that the alternatives described above essentially represent several of many points on a continuum of alternatives. Along the continuum, each alternative represents a different way in which NHTSA conceivably could assign weight to each of the four EPCA factors and NEPA's policies. CEQ guidance instructs that “[w]hen there are potentially a very large number of alternatives, only a reasonable number of examples, covering the full spectrum of alternatives, must be analyzed and compared in the EIS.” CEQ, *Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations,* 46 FR 18026, 18027, March 23, 1981 (emphasis original). *Scoping and Public Participation:* As NHTSA indicated in its notice of intent and request for scoping comments, NHTSA plans to use the scoping process to determine “the range of actions, alternatives, and impacts to be considered” in the EIS and to identify the most important issues for analysis. 20 NHTSA's NEPA analysis for the MY 2011-2015 CAFE standards will consider the direct, indirect and cumulative environmental impacts of the proposed standards and those of reasonable alternatives. Among other potential impacts, NHTSA will consider direct and indirect impacts related to fuel and energy use, emissions including CO2 and their effects on temperature and climate change, air quality, natural resources, and the human environment. NHTSA also will consider the cumulative impacts of the proposed standards for MY 2011-2015 automobiles together with estimated impacts of NHTSA's implementation of the CAFE program through MY 2010 and NHTSA's future CAFE rulemaking for MY 2016-2020, as prescribed by EPCA, as amended by EISA. To this end, NHTSA will project the future effects of the fuel use and emissions of the vehicle fleets analyzed over their lifetimes. 20 *See* 40 CFR 1500.5(d), 1501.7, 1508.25. NHTSA anticipates considerable uncertainty in estimating and comparing the potential environmental impacts of the proposed standards and the alternatives relating to climate change in particular. For instance, it may be difficult to predict with a reasonable degree of certainty or accuracy the range of potential global temperature changes that may result from changes in fuel and energy consumption and CO 2 emissions due to new CAFE standards. In turn, for example, it may be difficult to predict and compare the ways in which potential temperature changes attributable to new CAFE standards may impact many aspects of the environment. Accordingly, NHTSA expects to apply the provisions in the CEQ regulations addressing “[i]ncomplete or unavailable information,” where NHTSA would acknowledge these and other uncertainties in its NEPA analysis for the proposed standards. 21 NHTSA will rely on the 2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change
(IPCC)as a recent “summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment.” 22 The NHTSA NEPA analysis and documentation will incorporate material by reference “when the effect will be to cut down on bulk without impeding agency and public review of the action.” 23 21 *See* 40 CFR 1502.22. 22 40 CFR 1502.22(b)(3); see 40 CFR 1502.21. The report and the IPCC's earlier reports are available at *http://www.ipcc.ch/* (last visited March 11, 2008). 23 40 CFR 1502.21. In preparing this supplemental notice of public scoping, NHTSA has consulted with CEQ, EPA, and the Office of Management and Budget. Through this notice, NHTSA again invites other Federal agencies and State, local, and tribal agencies with jurisdiction by law or special expertise with respect to potential environmental impacts of the proposed CAFE standards and the public to participate in the scoping process. 24 24 Consistent with NEPA and implementing regulations, NHTSA is sending this notice directly to:
(1)Federal agencies having jurisdiction by law or special expertise with respect to the environmental impacts involved or authorized to develop and enforce environmental standards;
(2)the Governors of every State, to share with the appropriate agencies and offices within their administrations and with the local jurisdictions within their States;
(3)organizations representing state and local governments and Indian tribes; and
(4)other stakeholders that NHTSA reasonably expects to be interested in the NEPA analysis for the MY 2011-2015 CAFE standards. NHTSA also mailed the notice of intent to these stakeholders on April 10 and 11, 2008. *See* 42 U.S.C. 4332(2)(C); 49 CFR 520.21(g); 40 CFR 1501.7, 1506.6. Specifically, NHTSA invites all stakeholders to submit written comments concerning the appropriate scope of NHTSA's NEPA analysis for the proposed CAFE standards for MY 2011-2015 passenger cars and light trucks to the docket number identified in the heading of this notice using any of the methods described in the ADDRESSES section of this notice. NHTSA does not plan to hold a public scoping meeting, because written comments will be effective in identifying and narrowing the issues for analysis and because the rulemaking schedule necessary to meet the new statutory requirements is tight. However, NHTSA is especially interested in comments that address the potential impacts of NHTSA's proposed CAFE standards and reasonable alternatives relating to climate change. Specifically, NHTSA requests: • Peer-reviewed scientific studies that have been issued since the IPCC's Fourth Assessment Report (and are not reflected in the IPCC's work through November 17, 2007) and that address:
(a)The impacts of CO <sup>2</sup> and other greenhouse gas emissions on temperature, and specifically, the temperature changes likely to result from the proposed standards or the alternatives;
(b)the impacts of changes in temperature on the environment, including water resources and biological resources, and human health and welfare; or
(c)the time periods over which such impacts may occur. • Comments on how NHTSA should estimate the potential changes in temperature that may result from the changes in CO 2 emissions projected from the proposed standards and reasonable alternatives, and comments on how NHTSA should estimate the potential impacts of temperature changes on the environment. • Reports prepared by or on behalf of States, local governments, Indian tribes, regional organizations, or academic researchers analyzing the potential impacts of climate change in particular geographic areas of the United States. • Comments on other reasonable alternatives that NHTSA might consider in its NEPA analysis that fit within the purpose and need for the proposed rulemaking, as set forth in EPCA, as amended by EISA. When suggesting a possible alternative, please explain how it would satisfy each of the EPCA factors (namely, technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the nation to conserve energy) and requirements (such as achieving a combined fleet average fuel economy of at least 35 miles per gallon for MY 2020) and give effect to NEPA's policies. In addition, NHTSA requests comments on how the agency should assess cumulative impacts, including those from various emissions source categories and from a range of geographic locations. Two important purposes of scoping are identifying the significant issues that merit in-depth analysis in the EIS and identifying and eliminating from detailed analysis the issues that are not significant and therefore require only a brief discussion in the EIS. 25 In light of these purposes, written comments should include an Internet citation (with a date last visited) to each study or report you cite in your comments if one is available. If a document you cite is not available to the public on-line, you should attach a copy to your comments. Your comments should indicate how each document you cite in or attach to your comments is relevant to NHTSA's NEPA analysis and indicate the specific pages and passages in the attachment that are most informative. 25 40 CFR 1500.4(g), 1501.7(a). The more specific your comments are, and the more support you can provide by directing the agency to peer-reviewed scientific studies and reports as requested above, the more useful your comments will be to the agency. For example, if you identify an additional area of impact or environmental concern you believe NHTSA should analyze, you should clearly describe it and support your comments with a reference to a specific peer-reviewed scientific study or report. Specific, well-supported comments will facilitate the purposes of scoping identified above and will serve NEPA's overarching aims of making high quality information available to decisionmakers and the public and generating NEPA documents that “concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.” 26 By contrast, mere assertions that the agency should evaluate broad lists or categories of concerns, without support, will not help NHTSA focus its NEPA analysis for the proposed standards through scoping. 26 40 CFR 1500.1(b). Please be sure to reference the docket number identified in the heading of this notice in your comments. In addition, please provide a mailing address and indicate whether you want to receive notice of the publication of the NEPA documents with a copy of the executive summary and one of the following:
(a)A url to access the document on the Internet;
(b)a CD readable on a personal computer; or
(c)a printed copy of the entire document. These steps will help NHTSA to manage a large volume of material during the NEPA process. All comments and materials received, including the names and addresses of the commenters who submit them, will become part of the administrative record and will be posted on the Web at *http://www.nhtsa.dot.gov* . Based on comments received during scoping, NHTSA expects to prepare a draft EIS for public comment later this spring and a final EIS to support a final rule later this year. Separate **Federal Register** notices will announce the availability of the draft EIS, which will be available for public comment, and the final EIS, which will be available for public inspection. NHTSA also plans to continue to post information about the NEPA process and this CAFE rulemaking on its Web site ( *http://www.nhtsa.dot.gov* ). Issued: April 23, 2008. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. 08-1191 Filed 4-23-08; 1:55 pm]
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Traces to 44 documents
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47 references not yet in our index
  • 26 CFR 301
  • Pub. L. 101-508
  • 104 Stat. 1388
  • Pub. L. 104-188
  • 110 Stat. 1874
  • 27 CFR 9
  • 27 CFR 4
  • 30 CFR 916
  • 36 CFR 13
  • Pub. L. 105-277
  • Pub. L. 106-31
  • 113 Stat. 72
  • Pub. L. 104-333
  • 110 Stat. 4240
  • 37 CFR 2
  • 472 F.3d 882
  • 489 F.3d 1295
  • 40 CFR 58
  • 40 CFR 50
  • Pub. L. 104-4
  • 40 CFR 52
  • 40 CFR 81
  • 40 CFR 60
  • 40 CFR 2
  • 5 CFR 1320.3(b)
  • 40 CFR 9
  • Pub. L. 104-113
  • Pub. L. 110-140
  • 121 Stat. 1492
  • 42 USC 4321-4347
  • 40 CFR 1500
  • 49 CFR 520
  • 49 CFR 1.50
  • 956 F.2d 321
  • 901 F.2d 107
  • 508 F.3d 508
  • 49 CFR 523.2
  • 40 CFR 1502.2(e)
  • 40 CFR 1502.13
  • 40 CFR 1500.5(d)
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Proposed Rules
Notice of proposed rulemaking and withdrawal of notice of proposed rulemaking
Fed. Reg.Notices
U.S.C.§ 7805
U.S.C.§ 205
C.F.R.§ 4.25
C.F.R.§ 9.69
C.F.R.§ 9.74
C.F.R.§ 4.39
U.S.C.§ 1253
C.F.R.§ 916.10
F. App'x472 F.3d 882
F. App'x489 F.3d 1295
F. App'x956 F.2d 321
Cites 91 · showing 12Cited by 0 across 0 sources
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