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Code · REGISTER · 2008-04-29 · Agriculture Agriculture Department See Commodity Credit Corporation See Forest Service See Grain Inspection, Packers and Stockyards Administration NOTICES Agency Information Collection Activities; Pro · Unknown

Unknown. Final rule

69,078 words·~314 min read·/register/2008/04/29/08-1195

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

--- schema: federal-register doc_type: fedreg source_file: FR-2008-04-29.xml --- 73 83 Tuesday, April 29, 2008 Contents Agriculture Agriculture Department See Commodity Credit Corporation See Forest Service See Grain Inspection, Packers and Stockyards Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 23178 E8-9281 Privacy Act; Systems of Records, 23178-23180 E8-9325 Chemical Chemical Safety and Hazard Investigation Board NOTICES Meetings;
Sunshine Act, 23182 08-1200 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 23252-23253 E8-9278 E8-9293 Coast Guard Coast Guard RULES Long Range Identification and Tracking of Ships, 23310-23320 E8-9182 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Commission of Fine Commission of Fine Arts NOTICES Meetings: Commission of Fine Arts, 23196 E8-9118 CITA Committee for the Implementation of Textile Agreements NOTICES Determination:
Apply Textile Safeguard Measure on Imports of Certain Cotton Socks From Honduras, 23196 E8-9339 Commodity Commodity Credit Corporation RULES Release of Records: Tobacco Transition Payment Program, 23065-23066 E8-9295 Consumer Consumer Product Safety Commission NOTICES Provisional Acceptance of Settlement Agreement and Order: Cayre Group, Ltd., 23204-23205 E8-9277 DollarDays International, LLC, 23196-23198 E8-9290 Gildan Activewear SRL, 23198-23200 E8-9263 Life is Good, Inc., 23200-23202 E8-9265 Neiman Marcus Group, Inc., 23205-23207 E8-9270 Seena International, Inc., 23202-23204 E8-9291 True Religion Apparel, Inc., 23207-23209 E8-9268 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 23209-23210 E8-9355 Defense Defense Department NOTICES 36(b)(1) Arms Sales Notification, 23210-23213 E8-9146 Education Education Department PROPOSED RULES Meetings: Title I of the Elementary and Secondary Education Act of 1965, 23154-23155 E8-9351 Election Election Assistance Commission NOTICES Meetings; Sunshine Act, 23213 E8-9279 Employment Employment Standards Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 23273-23275 E8-9308 E8-9309 Energy Energy Department See Federal Energy Regulatory Commission See National Nuclear Security Administration See Western Area Power Administration NOTICES Record of Decision and Floodplain Statement of Findings:
Western Greenbrier Co-Production Demonstration Project, Rainelle, Greenbrier County, WV, 23214-23221 E8-9329 EPA Environmental Protection Agency RULES Approval and Promulgation of Air Quality Implementation Plans: Delaware; Control of Stationary Generator Emissions, 23101-23103 E8-9262 Virginia, 23103-23105 E8-9266 Wisconsin; Redesignation of the Forest County Potawatomi Community Reservation to a PSD Class I Area, 23086-23101 E8-8946 Approval and Promulgation of Implementation Plans:
Kentucky; Tennessee Valley Authority Paradise Facility State Implementation Plan Revision, 23105-23107 E8-9252 Dispute Resolution: Redesignation of the Forest County Potawatomi Community Reservation to a PSD Class I Area— Michigan, 23107-23111 E8-8969 Wiconsin, 23111-23114 E8-8970 Outer Continental Shelf Air Regulations: Consistency Update for California, 23114-23120 E8-9092 PROPOSED RULES Approval and Promulgation of State Implementation Plans: Idaho, 23155-23164 E8-9269 NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 23249-23251 E8-8960 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Empresa Brasileira de Aeronautica S.A. (EMBRAER), 23132-23136 E8-9313 E8-9315 Proposed Establishment of Low Altitude Area Navigation Routes (T-Routes); Southwest Oregon, 23136-23137 E8-9245 NOTICES Opportunity for Public Comment on Airport Property Release at Griffin-Spalding County Airport, Griffin, GA, 23303 E8-9272 FBI Federal Bureau of Investigation NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 23273 E8-9031 Federal Emergency Federal Emergency Management Agency RULES Final Flood Elevation Determinations, 23121-23129 E8-9225 PROPOSED RULES Proposed Flood Elevation Determinations, 23164-23170 E8-9260 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Electronic Tariff Filings, 23137-23154 E8-9297 NOTICES Availability of Environmental Assessment: Upper Peninsula Power Company & WI, 23221 E8-9298 Combined Notice of Filing, 23221-23222 E8-9300 Complaint:
New Brunswick Power Transmission Corp., 23222 E8-9301 Composition of Proxy Groups for Determining Gas and Oil Pipeline Return on Equity, 23222-23240 E8-9186 Draft License Application and Preliminary Draft Environmental Assessment: Gibson Dam Hydroelectric Project, LLC, 23240-23241 E8-9302 Intent to Prepare Environmental Assessment: Colorado Hub Connection Project, 23241-23243 E8-9303 Issuance of Order: DC Energy Texas, LLC and DC Energy California, LLC, 23243 E8-9299 Request Under Blanket Authorization, 23243-23244 E8-9304 FMC Federal Maritime Commission NOTICES Meetings:
Federal Maritime Commission, 23251 E8-9280 Federal Railroad Federal Railroad Administration NOTICES Petition for Waiver of Compliance, 23303-23304 E8-9034 Federal Reserve Federal Reserve System NOTICES Formations, Acquisitions, and Mergers of Bank Holding Companies, 23251 E8-9241 Regulatory Authorization; Voluntary Testing and Enrollment for New Method of Submitting Applications, etc., 23251-23252 E8-9326 Fine Arts Fine Arts Commission See Commission of Fine Arts Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: 90-day Finding on a Petition to List the Western Sage-Grouse as Threatened or Endangered, 23170-23172 E8-9180 90-Day Finding on Petitions to List the Mono Basin Area Population of the Greater Sage-Grouse as Threatened or Endangered, 23173-23175 E8-9185 Initiation of Status Review for the Greater Sage-Grouse as Threatened or Endangered, 23172-23173 E8-9181 NOTICES Endangered and Threatened Wildlife and Plants:
Initiation of 5-Year Status Reviews for 70 Species in Idaho, Montana, Oregon, Washington, and the Pacific Islands, 23264-23266 E8-9198 Receipt of Applications for Permit, 23266-23267 E8-9294 Food Food and Drug Administration RULES New Animal Drugs: Change of Sponsor's Name, 23066-23067 E8-9328 Forest Forest Service NOTICES Land Management Planning: Pike and San Isabel National Forests, etc., Colorado and Kansas, 23180-23181 E8-9311 Rosemont Copper Project, Coronado National Forest, Pima County, Arizona, 23181 E8-9307 GSA General Services Administration NOTICES Environmental Assessment;
Finding of No Significant Impact: National Nuclear Security Administration's Kansas City Plant, 23244-23248 E8-9322 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 23268 E8-9197 GIPSA Grain Inspection, Packers and Stockyards Administration NOTICES Designation for the Maryland, New Jersey, and New York Areas, 23181-23182 E8-9324 Health Health and Human Services Department See Children and Families Administration See Food and Drug Administration See Health Resources and Services Administration See Indian Health Service See National Institutes of Health Health Health Resources and Services Administration NOTICES Meetings:
National Advisory Council on Migrant Health; Correction, 23253-23254 E8-9333 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Indian Indian Health Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 23254-23255 E8-9258 Tribal Self-Governance Program Negotiation Cooperative Agreement; Correction, 23255 E8-9250 Tribal Self-Governance Program Planning Cooperative Agreement; Correction, 23255 E8-9246 Interior Interior Department See Fish and Wildlife Service See Geological Survey See Land Management Bureau See Minerals Management Service See National Park Service See Reclamation Bureau IRS Internal Revenue Service RULES Special Rules to Reduce Section 1446 Withholding, 23069-23086 E8-9356 Standards for Recognition of Tax-Exempt Status if Private Benefit Exists, etc.;
Correction, 23069 E8-9362 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 23307-23308 E8-9358 E8-9370 Meetings: Area 4 Taxpayer Advocacy Panel (Illinois, Indiana, Kentucky, Ohio, Tennessee, and Wisconsin); Correction, 23308 E8-9357 International International Trade Administration NOTICES Antidumping Duty Changed Circumstances Review: Certain Orange Juice From Brazil, 23182-23183 E8-9337 Consent Motion to Terminate Panel Review: Binational Panel Reviews, 23183-23184 E8-9296 Countervailing Duty Investigation:
Circular Welded Carbon Quality Steel Line Pipe From the People's Republic of China, 23184-23188 E8-9345 Initiation of Antidumping Duty Investigations: Certain Circular Welded Carbon Quality Steel Line Pipe From the Republic of Korea and the People's Republic of China, 23188-23194 E8-9361 Justice Justice Department See Federal Bureau of Investigation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 23272 E8-9036 Labor Labor Department See Employment Standards Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Withdrawal of National Forest System Land to Preserve Cave Resources etc., South Dakota;
Correction, 23268 E8-9318 Minerals Minerals Management Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 23269-23270 E8-9331 Major Portion Prices and Due Date for Additional Royalty Payments on Indian Gas Production, etc., 23270-23271 E8-9338 NASA National Aeronautics and Space Administration NOTICES Government-Owned Inventions, Available for Licensing, 23276-23279 E8-9359 E8-9360 E8-9363 E8-9364 E8-9368 E8-9369 National Highway National Highway Traffic Safety Administration NOTICES Grant of Petition for Decision of Inconsequential Noncompliance:
General Motors Corporation, 23304-23305 E8-9247 NIH National Institutes of Health NOTICES Government-Owned Inventions; Availability for Licensing, 23255-23256 E8-9257 Meetings: Center for Scientific Review, 23256-23259 E8-9158 E8-9160 E8-9284 National Cancer Institute Special Emphasis Panel; Small Grants Program for Cancer Epidemiology, 23259 E8-9287 National Center for Research Resources, 23259 E8-9275 National Human Genome Research Institute Special Emphasis Panel, 23259-23260 E8-9276 National Institute of Allergy and Infectious Diseases, 23262 E8-9285 National Institute of Dental and Craniofacial Research, 23261 E8-9164 National Institute of Mental Health, 23261 E8-9162 National Institute on Alcohol Abuse and Alcoholism, 23260-23261 E8-9152 E8-9154 E8-9156 National Institute on Drug Abuse Special Emphasis Panel Drug Interactions, 23261-23262 E8-9283 Prospective Grant of Exclusive License:
Development of Cancer Therapeutics in Humans, 23263 E8-9286 Method to Treat Psoriasis in Humans, 23263-23264 E8-9254 National National Nuclear Security Administration NOTICES Environmental Assessment; Finding of No Significant Impact: National Nuclear Security Administration's Kansas City Plant, 23244-23248 E8-9322 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Modification of the Yellowtail Flounder Landing Limit for the U.S./Canada Management Area, 23130-23131 E8-9383 Summer Flounder Fishery;
Quota Transfer, 23129-23130 08-1195 PROPOSED RULES Fisheries of the Northeastern United States: Scallop Dredge Exemption Areas; Addition of Monkfish Incidental Catch Trip Limits, 23175-23177 E8-9353 NOTICES Fisheries in the Western Pacific: American Samoa Longline Limited Entry Program, 23195 E8-9392 Issuance of Permit: Endangered Species (File No. 10022), 23195-23196 E8-9389 National Park National Park Service NOTICES Inventory Completion: Paul H. Karshner Memorial Museum, Puyallup, WA, 23271 E8-9149 National Science National Science Foundation NOTICES Meetings:
Business and Operations Advisory Committee, 23279 E8-9354 Nuclear Nuclear Regulatory Commission NOTICES Meetings: Advisory Committee on Nuclear Waste and Materials, 23279 E8-9314 Nuclear Nuclear Waste Technical Review Board NOTICES Meetings: U.S. Nuclear Waste Technical Review Board, 23279-23280 E8-9226 Occupational Occupational Safety and Health Administration NOTICES Meetings: Advisory Committee on Construction Safety and Health and Work Groups, 23275-23276 E8-9267 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Pipeline Safety;
Requests for Special Permit, 23305-23306 E8-9259 Presidential Presidential Documents PROCLAMATIONS * Special Observances:* Malaria Awareness Day (Proc. 8246), 23063-23064 08-1199 Reclamation Reclamation Bureau NOTICES Meetings: Colorado River Basin Salinity Control Advisory Council, 23271-23272 E8-9053 SEC Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 23280-23281 E8-9305 Chicago Stock Exchange, Inc., 23287 E8-9334 NYSE Arca, Inc., 23281-23292 E8-9289 E8-9320 E8-9321 Philadelphia Stock Exchange, Inc., 23293-23301 E8-9323 State State Department RULES Visas:
Documentation of Nonimmigrants Under the Immigration and Nationality Act, 23067-23069 E8-9336 NOTICES Availability of Draft Environmental Assessment: Proposed Frontera Juarez Pipeline Project, 23301-23302 E8-9366 Surface Surface Transportation Board NOTICES Railroad Cost of Capital (2007), 23306-23307 E8-9352 Textile Textile Agreements Implementation Committee See Committee for the Implementation of Textile Agreements Transportation Transportation Department See Federal Aviation Administration See Federal Railroad Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board NOTICES Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits:
KLM Royal Dutch Airlines, 23302 E8-9317 SkyWest Airlines, Inc., 23302-23303 E8-9319 Treasury Treasury Department See Internal Revenue Service Western Western Area Power Administration NOTICES Parker-Davis Project; WAPA-138 Rate Order No., 23248-23249 E8-9332 Separate Parts In This Issue Part II Homeland Security Department, Coast Guard, 23310-23320 E8-9182 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 83 Tuesday, April 29, 2008 Rules and Regulations DEPARTMENT OF AGRICULTURE Commodity Credit Corporation 7 CFR Part 1463 RIN 0560-AH79 Tobacco Transition Payment Program; Release of Records AGENCY: Commodity Credit Corporation, USDA.
ACTION: Final rule. SUMMARY: The Commodity Credit Corporation
(CCC)is revising the Tobacco Transition Payment Program
(TTPP)regulations to expand the information provided in quarterly notices to tobacco manufacturers and importers about the assessments due to CCC. Assessments are based on market shares, CCC has concluded that certain information formerly not included may be included in future assessment notices and released. Specifically, CCC will release to reporting manufacturers and importers the qualifying market share of other manufacturers and importers, for the relevant class of tobacco product, based solely on information supplied by the reporting manufacturer or importer to CCC. DATES: *Effective Date:* April 29, 2008. FOR FURTHER INFORMATION CONTACT: Jane Reed, Agricultural Economist, Economic and Policy Analysis Staff, Farm Service Agency (FSA), United States Department of Agriculture (USDA), Stop 0515, 1400 Independence Ave., SW., Washington, DC 20250-0510. Phone:
(202)720-6782; fax:
(202)720-8120; e-mail: *Jane.Reed@wdc.usda.gov.* Persons with disabilities who require alternative means for communication (Braille, large print, audio tape, etc.) should contact the USDA Target Center at
(202)720-2600 (voice and TDD). SUPPLEMENTARY INFORMATION: Background and Discussion TTPP was established by Title VI, the “Fair and Equitable Tobacco Reform Act” (FETRA) of the American Jobs Creation Act of 2004 (Pub. L. 108-357). FETRA repealed the tobacco marketing quota and related price support programs authorized by both Title III of the Agricultural Adjustment Act of 1938 and by the Agricultural Act of 1949 and provided for payments to persons who, during a certain period or at a certain time, had been the owners of farms with tobacco quotas or had produced regulated tobacco. FETRA is funded using assessments collected from tobacco manufacturers and importers. Under FETRA, CCC sends out quarterly notices to tobacco manufacturers and importers, informing those entities of the assessments due to CCC. Each notice also provides the entity with certain information, described at 7 CFR 1463.8. Assessments within classes of products are based on market shares, as calculated pursuant to FETRA. Prior to the issuance of this final rule, CCC had not included in its assessment notices data concerning the market share of each other manufacturer or importer for each applicable class of tobacco product even though such information is referenced in section 625 of FETRA, 7 U.S.C. 518d, specifically in section 625(d)(2)(G) of FETRA. This was because market share calculations are based on the filing by reporting parties of copies of certain tax returns filed with the U.S. Department of the Treasury (Treasury) and the Department of Homeland Security (DHS). Previously, in the preamble to a final rule published in the **Federal Register** on February 10, 2005 (70 FR 7007-7014), CCC explained that, after consultation with Treasury it had determined that market share data would not be included in the assessment notices because of the confidentiality provision of 26 U.S.C. 6103 regarding tax return information filed with Treasury. However, after further consultation, it has been determined that market share data may be included in the quarterly assessments without objection under section 6103 so long as the market share information supplied is limited to information supplied to CCC by those tobacco manufacturers and importers reporting to CCC. Accordingly, the TTPP regulations are changed in this final rule. Because of administrative changes that are needed, CCC does not expect routine inclusion of this data in quarterly assessment notices before the September 2008 assessments. Miscellaneous Correction In addition to the change discussed above, CCC is correcting the CCC point of contact information in the definition section (7 CFR 1463.3). Notice and Comment These regulations are exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553), as specified in section 642(b) of FETRA, which requires that the regulations be promulgated and administered without regard to the notice and comment provisions of section 5 of title 5 of the United States Code or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking. Executive Order 12866 This rule has been determined to be not significant under Executive Order 12866 and has not been reviewed by the Office of Management and Budget. Regulatory Flexibility Act This rule is not subject to the Regulatory Flexibility Act since CCC is not required to publish a notice of proposed rulemaking for this rule. Environmental Review The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations for compliance with NEPA (7 CFR part 799). The following final rule was determined to be Categorically Excluded. Therefore, no environmental assessment or environmental impact statement will be completed for this final rule. Executive Order 12372 This program is not subject to Executive Order 12372, which requires consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published in the **Federal Register** on June 24, 1983 (48 FR 29115). Executive Order 12612 This rule does not have Federalism implications that warrant the preparation of a Federalism Assessment. This rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various levels of government. Executive Order 12988 This final rule has been reviewed under Executive Order 12988. This final rule is not retroactive and it does not preempt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. Before any judicial action may be brought regarding the provisions of this rule the administrative appeal provisions of 7 CFR parts 11 and 780 must be exhausted. Federal Assistance Program The title and number of the Federal assistance program as found in the Catalog of Federal Domestic Assistance, to which this rule applies, are: Commodity Loans and Purchases—10.051. Unfunded Mandates This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act
(UMRA)for State, local, and tribal government or the private sector. In addition, CCC was not required to publish a notice of proposed rulemaking for this rule. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA. Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) Section 642(c) of FETRA requires that the Secretary use the authority in section 808 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA), which allows an agency to forgo SBREFA's usual 60-day Congressional Review delay of the effective date of a major regulation if the agency finds that there is a good cause to do so. Accordingly, this rule is effective on the date of publication in the **Federal Register** . Paperwork Reduction Act These regulations are exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in section 642(b) of FETRA, which provides that these regulations, which are necessary to implement FETRA, be promulgated and administered without regard to the Paperwork Reduction Act. E-Government Act Compliance CCC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. List of Subjects in 7 CFR Part 1463 Agriculture, Agricultural commodities, Acreage allotments, Marketing quotas, Price support programs, Tobacco, Tobacco Transition Program. For the reasons provided above, amend part 1463 of title 7 of the Code of Federal Regulation as follows: Chapter XIV—Commodity Credit Corporation, Department of Agriculture PART 1463—2005-2014 TOBACCO TRANSITION PROGRAM 1. The authority citation for part 1463 continues to read as follows: Authority: 7 U.S.C. 714b and 714c; and Title VI of Pub. L. 108-357. 2. Amend § 1463.3 by revising the definition of *CCC's point of contact* to read as follows: § 1463.3 Definitions. *CCC's point of contact* means, for items physically sent to CCC, “Fibers, Peanuts, and Tobacco Analysis Group, Economic and Policy Analysis Staff, Farm Service Agency, United States Department of Agriculture (USDA), STOP 0515, Room 3720-S, 1400 Independence Avenue, SW., Washington, DC 20250-0515” unless otherwise specified by CCC through actual notice. 3. Amend § 1463.8 by redesignating paragraphs (b)(8) and (b)(9) as paragraphs (b)(9) and (b)(10), respectively, and adding a new paragraph (b)(8) to read as follows: § 1463.8 Notification of assessments.
(b)* * *
(8)Beginning with the 2nd quarter of 2008, or as soon as practicable thereafter, the applied market share for that quarter of each other manufacturer and importer, for the applicable class of tobacco product of those manufacturers and importers that have provided such information to CCC in accordance with the provisions of § 1463.6, as determined by the Deputy Administrator, Farm Service Agency. Signed at Washington, DC, April 23, 2008. Teresa C. Lasseter, Executive Vice President, Commodity Credit Corporation. [FR Doc. E8-9295 Filed 4-28-08; 8:45 am] BILLING CODE 3410-06-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 510 New Animal Drugs; Change of Sponsor's Name AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect a change of sponsor's name from Halocarbon Laboratories, Division of Halocarbon Products Corp., to Halocarbon Products Corp. DATES: This rule is effective April 29, 2008. FOR FURTHER INFORMATION CONTACT: David R. Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8307, e-mail: *david.newkirk@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Halocarbon Laboratories, Division of Halocarbon Products Corp., 887 Kinderkamack Rd., P.O. Box 661, River Ridge, NJ 07661, has informed FDA that it has changed its name to Halocarbon Products Corp. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect these changes. FDA is also correcting the sponsor's address in the regulation. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 510 Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 510 is amended as follows: PART 510—NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 510 continues to read as follows: Authority: 21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e. 2. In § 510.600 in the table in paragraph (c)(1), revise the entry for “Halocarbon Laboratories”; and in the table in paragraph (c)(2), revise the entry for “012164” to read as follows: § 510.600 Names, addresses, and drug labeler codes of sponsors of approved applications.
(c)* * *
(1)* * * Firm name and address Drug labeler code * * * * * Halocarbon Products Corp., 887 Kinderkamack Rd., River Edge, NJ 07661 012164 * * * * *
(2)* * * Drug labeler code Firm name and address * * * * * 012164 Halocarbon Products Corp., 887 Kinderkamack Rd., River Edge, NJ 07661. * * * * * Dated: April 16, 2008. Bernadette Dunham, Director, Center for Veterinary Medicine. [FR Doc. E8-9328 Filed 4-28-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF STATE 22 CFR Parts 40 and 41 [Public Notice: 6202] Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended AGENCY: Department of State. ACTION: Final rule. SUMMARY: This final rule amends the Department of State's regulations related to application for a nonimmigrant visa, to offer a completely electronic application procedure as an alternative to submission of the Form DS-156. DATES: This rule is effective on April 29, 2008. FOR FURTHER INFORMATION CONTACT: Charles Robertson, Legislation and Regulations Division, Visa Services, Department of State, Washington, DC 20520-0106,
(202)663-1202, e-mail ( *robertsonce3@state.gov* ). SUPPLEMENTARY INFORMATION: Why is the Department promulgating this rule? The Government Paperwork Elimination Act (GPEA 1998) requires that, when possible, Federal agencies use electronic forms, electronic filing, and electronic signatures to conduct agency business with the public. For this reason, the Department of State developed and introduced an electronic application process for nonimmigrant visas to eventually replace the current application process, which depends on a paper form (Form DS-156, and other forms when required, such as the Form DS-157 and Form DS-158). The first step was to offer an electronic visa application form
(EVAF)as a voluntary alternative way of obtaining and preparing the Form DS-156. While the nonimmigrant visa applicant could obtain and prepare the Form DS-156 electronically, he or she was required to sign the Form DS-156 manually. On October 1, 2006, the EVAF was made mandatory worldwide wherever possible. Now, while the Department will continue to accept the EVAF (electronic Form DS-156) where necessary, it proposes to eventually eliminate the Form DS-156 entirely and replace it with the Form DS-160, an electronic form designed to be completed and signed electronically. What effect does the electronic application process have on the nonimmigrant visa applicant? The procedure is the same for the nonimmigrant visa applicant except that he or she will not be required to print and sign a form to take to the visa interview. All information entered into the Form DS-160 will be available to the consular officer at the time of the interview, thus simplifying the process from the point of the view of the applicant. The applicant is required to sign the Form DS-160 electronically. How does the applicant sign the Form DS-160 electronically? The applicant will be required to click on the box designated “Sign Application” found within the certification section of the application. How does the consular officer identify the applicant who has submitted an electronic application (Form DS-160)? Photos, passports and fingerscans collected as part of the application process will identify the applicant. How does the applicant certify that the information in the Form DS-160 is correct? By signing the Form DS-160 electronically (i.e., clicking on the “Sign Application” box), the applicant certifies that the information provided is correct. Is an electronic signature binding on a nonimmigrant visa applicant? Yes. The electronic signature (i.e., the click on the “Sign Application” box) indicates that the applicant is familiar with and intends to be bound by the statements contained in the application and has answered all questions truthfully, under penalty of perjury. Can a third party prepare the Form DS-160? While a third party may assist the applicant in preparing the Form DS-160, the applicant must electronically sign the application himself or herself. The applicant must identify in the application any third party who has assisted in the preparation of the Form DS-160. Regulatory Findings Administrative Procedure Act This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553. Regulatory Flexibility Act/Executive Order 13272: Small Business Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth at sections 603 and 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulates individual aliens who seek consideration for nonimmigrant visas and does not affect any small entities, as defined in 5 U.S.C. 601(6). The Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments. The Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets. Executive Order 12866: Regulatory Review The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of the proposed regulation justify its costs. The Department does not consider the rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. Executive Orders 12372 and 13132: Federalism This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132. Executive Order 12988: Civil Justice Reform The Department has reviewed the proposed regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. Paperwork Reduction Act This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35. List of Subjects in 22 CFR Parts 40 and 41 Aliens, Foreign officials, Immigration, Nonimmigrants, Passports and Visas. For the reasons stated in the preamble, the Department of State amends 22 CFR part 40 and 41 as follows: PART 40—[AMENDED] 1. The authority citation for part 40 continues to read: Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801, Pub. L. 104-208, 110 Stat. 3546. 2. Section 40.1 is amended by revising paragraph (l)(1) to read as follows: § 40.1 Definitions.
(l)* * *
(1)For a nonimmigrant visa applicant, submitting for formal adjudication by a consular officer of an electronic application, Form DS-160, signed electronically by clicking the box designated “Sign Application” in the certification section of the application or, as directed by a consular officer, a completed Form DS-156, with any required supporting documents and biometric data, as well as the requisite processing fee or evidence of the prior payment of the processing fee when such documents are received and accepted for adjudication by the consular officer. PART 41—[AMENDED] 3. The authority citation for part 41 continues to read: Authority: 8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681-795 through 2681-801, Pub. L. 104-208, 110 Stat. 3546.3. 4. Section 41.32 is amended by revising paragraph (a)(2) to read as follows: § 41.32 Nonresident alien Mexican border crossing identification cards; combined border crossing identification cards and B-1/B-2 visitor visas.
(a)* * *
(2)*Procedure for application.* Mexican applicants shall apply for a B-1/B-2 Visa/BCC at any U.S. consular office in Mexico designated by the Deputy Assistant Secretary of State for Visa Services pursuant to paragraph
(a)of this section to accept such applications. The application shall be submitted electronically on Form DS-160 or, as directed by a consular officer, on Form DS-156. If submitted electronically, it must be signed electronically by clicking the box designated “Sign Application” in the certification section of the application. 5. Section 41.103 is revised to read as follows: § 41.103 Filing an application.
(a)*Filing an application—(1) Filing of application required.* Every alien seeking a nonimmigrant visa must make an electronic application on Form DS-160 or, as directed by a consular officer, an application on Form DS-156. The Form DS-160 must be signed electronically by clicking the box designated “Sign Application” in the certification section of the application.
(2)*Filing of an electronic application (Form DS-160) or Form DS-156 by alien under 16 or physically incapable.* The application for an alien under 16 years of age or one physically incapable of completing an application may be completed and executed by the alien's parent or guardian, or if the alien has no parent or guardian, by any person having legal custody of, or a legitimate interest in, the alien.
(3)*Waiver of filing of application when personal appearance is waived.* Even if personal appearance of a visa applicant is waived pursuant to 22 CFR 41.102, the requirement for filing an application is not waived.
(b)*Application—(1) Preparation of Electronic Nonimmigrant Visa Application (Form DS-160) or, alternatively, Form DS-156.* The consular officer shall ensure that the application is fully and properly completed in accordance with the applicable regulations and instructions.
(2)*Additional requirements and information as part of application.* Applicants who are required to appear for a personal interview must provide a biometric, which will serve to authenticate identity and additionally verify the accuracy and truthfulness of the statements in the application at the time of interview. The consular officer may require the submission of additional necessary information or question an alien on any relevant matter whenever the consular officer believes that the information provided in the application is inadequate to permit a determination of the alien's eligibility to receive a nonimmigrant visa. Additional statements made by the alien become a part of the visa application. All documents required by the consular officer under the authority of § 41.105(a) are considered papers submitted with the alien's application within the meaning of INA 221(g)(1).
(3)*Signature.* The Form DS-160 shall be signed electronically by clicking the box designated “Sign Application” in the certification section of the application. This electronic signature attests to the applicant's familiarity with and intent to be bound by all statements in the NIV application under penalty of perjury. Alternatively, except as provided in paragraph (a)(2) of this section, the Form DS-156 shall be signed by the applicant, with intent to be bound by all statement in the NIV application under penalty of perjury.
(4)*Registration.* The Form DS-160 or the Form DS-156, when duly executed, constitutes the alien's registration for the purposes of INA 221(b). 6. Section 41.106 is revised to read as follows: § 41.106 Processing. Consular officers must ensure that the Form DS-160 or, alternatively, Form DS-156 is properly and promptly processed in accordance with the applicable regulations and instructions. 7. Section 41.113 is amended by revising paragraphs
(g)and
(h)to read as follows: § 41.113 Procedures in issuing visas.
(g)*Delivery of visa.* In issuing a nonimmigrant visa, the consular officer should deliver the visaed passport, or the prescribed Form DS-232, which bears the visa, to the alien or to the alien's authorized representative. Any evidence furnished by the alien in accordance with 41.103(b) should be retained in the consular files, along with Form DS-156, if received.
(h)*Disposition of supporting documents.* Original supporting documents furnished by the alien should be returned for presentation, if necessary, to the immigration authorities at the port of entry. Duplicate copies may be retained in the consular files or scanned into the consular system. Dated: April 22, 2008. Janice L. Jacobs, Assistant Secretary for Consular Affairs, Acting, Department of State. [FR Doc. E8-9336 Filed 4-28-08; 8:45 am] BILLING CODE 4710-06-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9390] RIN 1545-BE37 Standards for Recognition of Tax-Exempt Status if Private Benefit Exists or if an Applicable Tax-Exempt Organization Has Engaged in Excess Benefit Transaction(s); Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correcting amendment. SUMMARY: This document contains corrections to final regulations (TD 9390) that were published in the **Federal Register** on Friday, March 28, 2008 (73 FR 16519) clarifying the substantive requirements for tax exemption under section 501(c)(3) of the Internal Revenue Code. These final regulations also contain provisions that clarify the relationship between the substantive requirements for tax exemption under section 501(c)(3) and the imposition of section 4958 excise taxes on excess benefit transactions. DATES: This correction is effective April 29, 2008 and is applicable on March 28, 2008. FOR FURTHER INFORMATION CONTACT: Galina Kolomietz,
(202)622-7971 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The final regulations that are the subject of this document are under sections 501(c)(3) and 4958 of the Internal Revenue Code. Need for Correction As published, final regulations (TD 9390) contain errors that may prove to be misleading and are in need of clarification. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Correction of Publication Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * § 1.501(c)(3)-1 [Amended] **Par. 2** . Section 1.501(c)(3)-1 is amended as follows: 1. In paragraph (d)(1)(iii) *Example 2.* (ii), in the second sentence, the language “As a result, the sole activity of O serves the private interests of these artists.” is removed and the language “As a result, the principal activity of O serves the private interests of these artists.” is added in its place. 2. In paragraph (f)(2)(iv) *Example 2.* (iii), in the sixth sentence, the language “Beginning in Year 4, however, as O's exempt function activities grow, the size and scope of the excess benefit transactions that occurred in Year 3 become less and less significant as compared to the size and extent of O's regular and ongoing exempt function activities.” is removed and the language “Beginning in Year 4, however, as O's exempt function activities grow, the size and scope of the excess benefit transactions that occurred in Year 3 become less and less significant as compared to the size and scope of O's regular and ongoing exempt function activities.” is added in its place. 3. In paragraph (f)(2)(iv) *Example 4.* (iii), in the fourth sentence, the language “By adopting a conflicts of interest policy and significant new contract review procedures and by terminating C, O has implemented safeguards that are reasonably calculated to prevent future violations.” is removed and the language “By adopting a conflicts of interest policy and new contract review procedures and by terminating C, O has implemented safeguards that are reasonably calculated to prevent future violations.” is added in its place. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E8-9362 Filed 4-28-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1, 301, and 602 [TD 9394] RIN 1545-BD80 Special Rules To Reduce Section 1446 Withholding AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations and removal of temporary regulations. SUMMARY: This document contains final regulations regarding when a partnership may consider certain deductions and losses of a foreign partner to reduce or eliminate the partnership's obligation to pay withholding tax under section 1446 on effectively connected taxable income allocable under section 704 to such partner. The regulations will affect partnerships engaged in a trade or business in the United States that have one or more foreign partners. The final regulations also include conforming amendments to §§ 1.1446-3 and 1.1446-5 and to regulations under sections 1464, 6071, 6091, 6151, 6302, 6402, 6414, and 6722. DATES: *Effective Date:* These regulations are effective on April 29, 2008. *Applicability Dates:* The regulations are generally applicable for partnership taxable years beginning after December 31, 2007. See § 1.1446-6(f). For a transition rule see § 1.1446-6(g). FOR FURTHER INFORMATION CONTACT: Ronald M. Gootzeit at
(202)622-3860 (not a toll-free number). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1934. The collection of information in these final regulations is in § 1.1446-6(c) and (d). This information is required to determine the extent to which a partnership will consider certifications of losses and deductions in calculating the amount of withholding tax it must pay with respect to a foreign partner on the partner's allocable share of effectively connected taxable income earned by such partnership. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103. Background On September 3, 2003, the IRS and the Treasury Department published in the **Federal Register** a notice of proposed rulemaking [REG-108524-00; 2003-42 IRB 869; 68 FR 52466], corrected at 68 FR 62553 (November 5, 2003) under sections 871, 1443, 1446, 1461, 1462, 1463, 6109, and 6721 of the Internal Revenue Code (Code). The regulations provide guidance for partnerships required to pay withholding tax under section 1446 of the Code (1446 tax). On May 18, 2005, the IRS and the Treasury Department issued final and temporary regulations under section 1446. The 2005 final regulations set forth the provisions of the 2003 proposed regulations in final form and the temporary regulations established a new procedure by which a partnership could consider certain partner-level deductions and losses when computing its 1446 tax. The temporary regulations generally apply to partnership taxable years beginning after the date of their issuance, but an election was provided that permitted a partnership to apply the regulations to partnership taxable years beginning after December 31, 2004, provided the partnership elected to apply the 2005 final regulations to partnership taxable years beginning after December 31, 2004. On May 18, 2005, the IRS and the Treasury Department also published in the **Federal Register** a notice of proposed rulemaking [REG-108524-00; 2005-1CB 1158; 70 FR 28701], under sections 1464, 6071, 6091, 6151, 6302, 6402, 6414, and 6722 of the Code to implement the section 1446 regime, as well as cross-referencing the temporary regulations under § 1.1446-6T (see 26 CFR Part 1, revised as of April 1, 2007). Written comments were received in response to the notice of proposed rulemaking, and a public hearing was held on November 16, 2005. After consideration of all the comments, the proposed regulations are adopted, as revised by this Treasury decision and the temporary regulations are removed. Explanation of Provisions Section 1446 requires a partnership to pay section 1446 tax on a foreign partner's allocable share of effectively connected taxable income
(ECTI)from the partnership. The temporary regulations allow certain foreign partners to certify certain deductions and losses to a partnership to reduce the 1446 tax required to be paid by the partnership with respect to ECTI allocable to such partners. The temporary regulations also permit a nonresident alien partner to certify to the partnership that the partnership investment is (and will be) its only activity for its taxable year that gives rise to effectively connected income, gain, deduction, or loss. In that case, the partnership is not required to pay 1446 tax (or any installment of such tax) with respect to such partner if the partnership estimates that the annualized (or, in the case of a partnership completing its Form 8804 “Annual Return for Partnership Withholding Tax (Section 1446),” the actual) 1446 tax due with respect to such nonresident alien partner is less than $1,000. I. Modifications to the Temporary Regulations A. Format of Certificate Submitted to a Partnership The temporary regulations state that no particular form is required for the partner's certificate of deduction and losses to the partnership. However, the temporary regulations list 13 items the certificate must contain and the caption that must appear at the top of the certificate. To ensure uniformity of the certificates and to reduce the likelihood of an inadvertently omitted item causing the certificate to be defective, the IRS developed a form (Form 8804-C, “Certificate of Partner-Level Items to Reduce Section 1446 Withholding”) to be used by the partner providing a certificate to the partnership. The IRS and the Treasury Department believe that the Form 8804-C will facilitate a partner's ability to provide original and updated certificates. B. Partners Entitled To Certify Deductions and Losses 1. *Filing period requirement: number of years* To be eligible to provide a certificate to a partnership the temporary regulations require a partner to have timely filed (or to represent that it will timely file) a U.S. income tax return for each of its preceding four taxable years and for the taxable year during which the certificate is provided and will be considered by the partnership. The partner is also required to have timely paid (or to represent that it will timely pay) all tax shown on such returns. The final regulations clarify that only returns that report income or gain effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities will satisfy the tax return filing requirement (for the current or relevant prior years). Accordingly, the partner may not fulfill this requirement with a U.S. income tax return that reports no items of income or gain effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities. Several commentators suggested reducing the temporary regulations' prior years U.S. tax return filing requirement. One commentator suggested reducing the requirement to the lesser of the two prior years or the number of years the partner has been a partner in the relevant partnership. Another commentator suggested reducing the requirement from four to two years. The IRS and the Treasury Department believe it appropriate to require the foreign partner to have filed a certain number of returns and paid any tax relating to those returns regardless of the number of years the partner has been a member of the relevant partnership. The IRS and the Treasury Department do not believe that a reduction to two years is appropriate. Because the return for the year immediately preceding the year a partner submits a certificate to a partnership may not have been filed by the date when the certificate is submitted, reducing the prior years filing requirement to two years could result in only one return being filed by the date on which the certificate is submitted. In response to these comments, however, the IRS and the Treasury Department have determined that it is appropriate to reduce the prior years filing requirement to three years. The IRS and the Treasury Department have also decided to modify the filing requirement of a tax return for a preceding taxable year in which the partner did not submit a certificate to any partnership, if the return has a due date (without extensions) before the beginning of the partnership taxable year for which the certificate is provided. The final regulations provide that such returns must be filed and all amounts due with such return (including interest, penalties, and additions to tax, if any) must be paid on or before the earlier of:
(1)The date that is one year from the due date (without extensions) of such return; or
(2)The date on which the certificate for the current taxable year is submitted to the partnership. Once a partner submits a certificate to a partnership, however, it must timely file all its subsequent years' returns (and timely pay all amounts due with the returns) to submit a certificate to a partnership in a later year. The IRS and the Treasury Department anticipate that this modified rule will permit more foreign partners to provide certificates to partnerships under the final regulations. 2. *Trusts and estates* One commentator requested that the IRS and the Treasury Department explain why foreign estates and domestic or foreign trusts, other than grantor trusts, are not permitted to certify deductions and losses to partnerships. Another commentator asked that the decedent's compliance record be considered in determining whether the estate can certify deductions and losses to a partnership. The final regulations do not modify the treatment of estates and trusts. The IRS and the Treasury Department continue to believe, as stated in the preamble to the temporary regulations, that because trusts and estates are not always pure conduits for tax purposes it is difficult for a partnership to determine the taxpayer (that is, the trust, estate or beneficiary) that will pay tax on the ECTI allocated to the trust or estate. Further, a decedent's filing history may have limited relevance in predicting the estate's likely compliance. 3. *Tiered partnerships* In a tiered partnership structure, a lower-tier partnership must withhold 1446 tax on ECTI allocable to an upper-tier foreign partnership that is a partner in the lower-tier partnership. However, if the upper-tier foreign partnership provides sufficient information regarding its partners to the lower-tier partnership, the lower-tier partnership may withhold 1446 tax based on the partners in the upper-tier partnership. These rules may also apply to upper-tier domestic partnerships that have foreign partners. See § 1.1446-5. Similarly, an upper-tier partnership that receives certificates of deductions and losses from its foreign partners may provide the certificates to the lower-tier partnerships. The final regulations add several rules to ensure that deductions and losses certified to an upper-tier partnership are not taken into account by both the upper-tier partnership and a lower-tier partnership or by more than one lower-tier partnership. A new rule is also added requiring that sufficient information regarding a partner in the upper-tier partnership submitting the certificate be provided to the lower-tier partnership and then to the IRS so that the IRS can reliably associate the ECTI and the certificate with the partner in the upper-tier partnership. C. Submissions of Certificates 1. *Time lags for submission of certificates* The temporary regulations provide that the partnership may rely on the first certificate submitted by the foreign partner for a partnership taxable year only if the partnership receives the certificate at least 30 days before the installment due date or the annual Form 8804 filing due date (without regard to extensions) for the partnership taxable year for which the partner would like the certificate to be considered in computing the 1446 tax due with respect to the partner. Updated certificates may only be considered if received at least ten days before the installment due date or the Form 8804 filing date (without regard to extensions). Several commentators questioned the appropriateness of these timing requirements if the partnership is willing to rely on a certification submitted at the last moment and remits the 1446 tax installment or files the final return on a timely basis. The IRS and the Treasury Department agree with the commentators and have removed these requirements in the final regulations. 2. *Resubmission of certificates* The temporary regulations require the partnership to attach a copy of any certificate, and the computation of 1446 tax due with respect to a partner, to both the Form 8813, “Partnership Withholding Tax Payment Voucher (Section 1446),” and Form 8805, “Foreign Partner's Information Statement of Section 1446 Withholding Tax,” filed with the IRS for any period for which such certificate is considered in computing the partnership's 1446 tax (or any installment of such tax). One commentator suggested that a certificate submitted with Form 8813 should not be required to be submitted with subsequent filings of Form 8813 or with Form 8805. The IRS and the Treasury Department agree with the comment regarding Form 8813. The final regulations provide that a partner's certificate need only be submitted for the first installment period for which it is considered. For subsequent installment periods for which the certificate is considered, the partnership may instead attach a list of the name, taxpayer identification number, and the amount of certified deductions of each foreign partner whose certificate was previously considered during the taxable year and whose certificate was again considered in the subject installment period. The partnership would also indicate if it was relying on the state and local taxes withheld and remitted on behalf of the partner. If the partnership is relying on the de minimis rule for the partner, the partnership would indicate that, in lieu of indicating the amount of certified deductions. However, if a partnership receives an updated certificate from a partner, that certificate must be attached with the Form 8813 for the first installment period it is considered. In all events, a partnership must attach to the Form 8813 and Form 8805, a computation of 1446 tax due with respect to such partner for all periods for which a certificate received from the partner is considered by the partnership. In addition, in all events the partnership must attach to the Form 8805 a copy of the partner's original or updated certificate, as appropriate. 3. *Denying partnerships the ability to submit certificates* Consistent with the temporary regulations, the final regulations provide that upon receipt of written notification from the IRS that a foreign partner's certificate is defective, the partnership may no longer rely on the defective certificate or any other certificate submitted by the partner until the IRS notifies the partnership in writing and revokes or modifies the original notice. The final regulations provide that the IRS may also notify the partnership in writing if either a substantial portion of the certificates submitted by the partnership are defective or a substantial amount of the deductions and losses relied on by the partnership in computing its 1446 tax due are reported on one or more defective certificates. Upon receiving that notification the partnership may not rely on any certificate submitted by any partner for the partnership taxable year in which such notification is received or any subsequent partnership taxable year, until the IRS notifies the partnership again in writing and revokes or modifies the original notice. D. Deductions and Losses Certified to the Partnership 1. *Current year deductions* The temporary regulations provide that a foreign partner can only certify deductions and losses that are or will be reflected on the partner's U.S. income tax return filed (or to be filed) for a taxable year ending prior to the installment due date or Form 8804 filing date (without regard to extensions) for the partnership taxable year for which the certificate is considered. Therefore, no anticipated deduction or loss with respect to current operations may be considered. One commentator suggested that partners should be permitted to certify current year deductions to the partnership. The IRS and the Treasury Department are concerned about the uncertainty associated with fluctuations in estimates of current-year activities and therefore have not adopted this suggestion. 2. *Charitable deductions* One commentator requested that partners be permitted to certify charitable contribution deductions. The IRS and the Treasury Department have not adopted this recommendation because of the difficulty a partnership would have in determining the amount of a charitable contribution deduction allowed to the foreign partner. Section 170 provides separate rules for corporations and individuals, the type of charity to which the contribution is made, and the type of property contributed to the charity. In addition, separate rules apply to determine the deduction amount in the case of charitable contribution carryover. 3. *Suspended losses* One commentator raised a concern that a foreign partner could certify a passive activity loss to a partnership that conducts a different activity in which the partner materially participates. If the partnership took that loss into account it would inappropriately reduce its 1446 tax due with respect to that partner. Because on its income tax return the partner could not offset the loss against its allocable share of partnership ECTI, the partner might inappropriately each year recertify that loss to the partnership. To address that concern the final regulations clarify that a partner must identify any certified deductions and losses that are subject to special limitations at the partner level and provide information to the partnership that will allow the partnership to take into account the special limitations. 4. *Net operating losses* The temporary regulations provide that a partnership may not consider a partner's net operating loss
(NOL)deduction in an amount greater than 90 percent of the partner's allocable share of ECTI. Two commentators discerned that this requirement reflects a concern about the alternative minimum tax
(AMT)limitation on NOL deductions and suggested the regulations should be tied to the continuing applicability of the 90 percent AMT limitation on the use of NOL carryovers. The IRS and the Treasury Department have adopted this suggestion. One commentator further suggested that if the 90 percent limitation is retained, or as long as it applies, the regulations should be clarified to explain that the limitation should be applied on a cumulative basis for each installment period. This suggestion has also been adopted. With this clarification, if the partnership's annualized income changes during the year, the NOL deduction that the partnership may take into account can increase or decrease accordingly. E. Partnership Items Allocable to Partners That Give Rise to Partner Level Deductions, Losses or Credits But Are Not Partnership Allocations of Deductions and Losses Under Section 704 1. *State income taxes* One commentator suggested allowing the partnership to reduce a foreign partner's ECTI by the amount of any state and local taxes paid by the partnership on behalf of the partner with respect to the partner's allocable share of partnership income. The final regulations adopt this recommendation but provide that the partnership may only consider 90 percent of the state and local taxes withheld and remitted on behalf of the partner but only with respect to the partner's allocable share of ECTI. The partnership may consider these amounts regardless of whether the partner submits a certification of deductions and losses or of its de minimis status to the partnership for the relevant partnership taxable year. 2. *Section 199 deductions* One commentator suggested allowing a partnership to consider a partner's available deduction under section 199 in determining its section 1446 tax with respect to that partner. The section 199 deduction is a percentage of the lesser of the qualified production activities income
(QPAI)of the taxpayer for the taxable year or the taxpayer's taxable income or, in the case of an individual, adjusted gross income determined without regard to section 199 for the taxable year. In addition, the deduction is limited to 50 percent of the Form W-2, “Wage and Tax Statement”, wages for the taxpayer for the taxable year. Depending on a taxpayer's gross receipts and assets, there are up to three permissible methods for calculating QPAI. In the case of a pass-through entity (such as a partnership), section 199(d)(1)(A) provides that the section 199 deduction is calculated at the partner level. A partner may be a member of more than one partnership and may engage in its own qualifying activities under section 199. The QPAI and Form W-2 wages, and any other QPAI and Form W-2 wages reported by a partnership to the partner, must be added to the partner's own calculation of QPAI and Form W-2 wages. Therefore, because of the difficulty in a partnership determining the section 199 deduction of a partner, the IRS and the Treasury Department determined it would be inappropriate to allow a partnership to consider the section 199 deduction of a partner in determining the amount of section 1446 tax to be withheld with respect to that partner. 3. *Section 470 deductions* One commentator suggested that the regulations allow the partnership to consider partner-level deductions previously suspended under section 470 (limitation on deductions allocable to property used by governments or other tax-exempt entities) and relating to the partnership, when the deductions become available. Section 470 currently allows the partnership to consider these suspended partner-level deductions in determining the partner's ECTI. Therefore, there is no need to modify the regulations in response to this suggestion. 4. *Tax credits* One commentator suggested that a foreign partner should be able to certify credits to the partnership and that the partnership be able to consider current-year credits in determining the amount of its 1446 tax. Section 1446 requires that a partnership pay a withholding tax on its ECTI allocable to foreign partners. It provides no authority for partnerships to consider credits in determining the amount of 1446 tax the partnership is required to withhold and pay. Therefore, this suggestion has not been adopted. F. Effect on Reasonable Reliance on Certificate of Deductions and Losses The temporary regulations provide that a partnership is not relieved from liability for 1446 tax under section 1461 or for any applicable addition to the tax, interest, or penalties if a partner's certificate is defective or the partner submits an updated certificate that increases the 1446 tax due with respect to such partner. If a certificate is determined to be defective for a reason other than the amount or character of the deductions and losses set forth on such certificate (for example, the partner failed to timely file a U.S. income tax return), then the partnership is liable for the entire 1446 tax amount under section 1461 (or any installment of such tax). Further, under the temporary regulations, if it is determined that a certificate is defective because the actual deductions and losses available to the partner are less than the amount certified to the partnership (other than when it is determined that the partner certified the same deduction or loss to more than one partnership), the partnership is liable for 1446 tax under section 1461 (or any installment of such tax) only to the extent the amount of certified deductions and losses taken into account by the partnership is greater than the amount determined to be actually available to the partner and permitted to be used under regulations. Similarly, if it is determined that a certificate is defective because the character of the certified deductions and losses is erroneous, the partnership is liable for 1446 tax under section 1461 (or any installment of such tax) only to the extent the actual character of the deductions and losses results in an increase in the 1446 tax due with respect to such partner. However, the temporary regulations provide that the partnership is not liable for the addition to tax under section 6655 (as applied though § 1.1446-3) for the period during which the partnership reasonably relied on the certificate. Further, the temporary regulations provide that although a partnership is generally liable for the 1446 tax, any addition to the tax, interest, and penalties, the partnership may be relieved of some penalties in certain circumstances. One commentator stated that reasonable reliance on a certificate should protect a partnership against liability not only under section 6655, but also for liability for the tax under section 1461, interest on the tax under section 6601, and various other penalty provisions. The IRS and the Treasury Department have not adopted this recommendation. Use of the certification procedures under § 1.1446-6 is voluntary. The foreign partner is not required to submit a certificate of deductions and losses to the partnership. Moreover, even if the partnership receives a certificate it may consider all, none or only a portion of the certified deductions and losses when calculating its payment of 1446 tax. Further, as the temporary regulations stated, the partnership may be relieved of some penalties in certain circumstances. G. Relief for a Partnership's Failure To Comply Timely With the Requirements of This Section Among other requirements, to apply the rules of § 1.1446-6 the partnership must receive a valid certificate from the foreign partner and attach the certificate, along with the computation of 1446 tax due with respect to that partner, to certain Forms 8813 and Form 8805 filed with respect to that partner. The IRS and the Treasury Department believe that a reasonable cause standard should be applied to determine whether a partnership that failed to attach the certificate and 1446 tax computation to the relevant filing is eligible for an extension of time to comply with this requirement. Under the reasonable cause standard, if a partnership that may otherwise rely on a partner's certificate fails to comply timely with the requirements of § 1.1446-6, the partnership is considered to have satisfied the timeliness requirement if it demonstrates, to the satisfaction of the Area Director, Field Examination, Small Business/Self-Employed or the Director, Field Operations, Large and Mid-Size Business (Director) having jurisdiction of the partnership's return for the taxable year, that such failure was due to reasonable cause and not willful neglect. Once the partnership becomes aware of the failure, the partnership must demonstrate reasonable cause and must satisfy the filing requirement by attaching the certificate and the partnership's computation of 1446 tax due with respect to that partner to an amended Form 8813 or Forms 8804 and 8805 (that amends the tax return to which the certificate and computation should have been attached). A written statement must be included that explains the reasons for the failure to comply. In determining whether the partnership has reasonable cause, the Director shall determine whether the partnership acted reasonably and in good faith based on all the facts and circumstances. The Director shall notify the partnership in writing within 120 days of the filing if it is determined that the failure to comply was not due to reasonable cause or if additional time will be needed to make such determination. If the Director fails to notify the partnership within 120 days of the filing, the partnership shall be considered to have demonstrated to the Director that such failure was due to reasonable cause and not willful neglect. H. Effective/Applicability Dates and Transition Rule The final regulations are effective for partnership taxable years beginning after December 31, 2007. However, any certificate submitted on or before July 28, 2008 that met the requirements of the temporary regulations shall not be considered defective solely because it does not meet the requirements of the final regulations. However, any certificate (including any updated certificates and status reports) submitted, or required to be submitted, after July 28, 2008, must comply with the requirements of these final regulations. II. Modifications to the 2005 Final Regulations The final regulations make several clarifying and conforming changes to the 2005 final regulations including with respect to the calculation of installment payments of 1446 tax when a partnership considers a certificate received under § 1.1446-6 and the information that a lower-tier partnership must receive from an upper-tier partnership when the lower-tier partnerships pays 1446 tax on behalf of the partners in the upper-tier partnership. Also the prior year safe harbor provision in § 1.1446-3 was conformed with section 6655 to provide that the partnership must compute its current year 1446 tax installments based on the total 1446 tax (without regard to § 1.1446-6) as computed for the prior taxable year. These revisions are effective for partnership taxable years beginning after December 31, 2007. Special Analyses It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. It also has been determined that section 553(b) of the Administrative Procedures Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collections of information contained in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that only a few small entities are expected to be impacted by these collections and the burden associated with such collections is estimated to be 0.5 hours. Moreover, the information collection in § 1.1446-6 and its use is voluntary. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding the final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business. Drafting Information The principal author of these regulations is Ronald M. Gootzeit of the Office of the Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development. List of Subjects 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. 26 CFR Part 301 Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements. 26 CFR Part 602 Reporting and recordkeeping requirements. Adoption of Amendments to the Regulations Accordingly, 26 CFR parts 1, 301, and 602 are amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2.** Section 1.1446-0 is amended is as follows: 1. Adding entries for § 1.1446-6. 2. Removing entries for § 1.1446-6T. 3. Revising the entry for § 1.1446-7. The addition and revision read as follows: § 1.1446-0 Table of contents. § 1.1446-6 Special rules to reduce a partnership's 1446 tax with respect to a foreign partner's allocable share of effectively connected taxable income.
(a)In general.
(1)Purpose and scope.
(2)Reasonable reliance on a certificate.
(b)Foreign partners to whom this section applies.
(1)In general.
(2)Definitions.
(i)U.S. income tax return.
(ii)Timely-filed.
(iii)Qualifying U.S. income tax return.
(3)Special rules.
(c)Reduction of 1446 tax with respect to a foreign partner.
(1)General rules.
(i)Certified deductions and losses.
(A)Deductions and losses from the partnership.
(B)Deductions and loss from other sources.
(C)Limit on the consideration of a partner's net operating loss deduction.
(D)Limitation on losses subject to certain partner level limitations.
(E)Certification of deductions and losses to other partnerships.
(F)Partner level use of deductions and losses certified to a partnership.
(ii)De minimis certificate for nonresident alien individual partners.
(A)In general.
(B)Requirements for exception.
(iii)Consideration of certain current year state and local taxes.
(2)Form and time of certification.
(i)Form of certification.
(ii)Time of certification provided to partnership.
(A)First certificate submitted for a partnership's taxable year.
(B)Updated certificates and status updates. ( *1* ) Preceding year tax returns not yet filed. ( *2* ) Other circumstances requiring an updated certificate. ( *3* ) Form and content of updated certificate. ( *4* ) Partnership consideration of an updated certificate.
(3)Notification to partnership when a partner's certificate cannot be relied upon.
(4)Partner to receive copy of notice.
(5)Notification to partnership when no foreign partner's certificate can be relied upon.
(6)Partnership notification to partner regarding use of deductions and losses.
(7)Partner's certificate valid only for partnership taxable year for which submitted.
(d)Effect of certificate of deductions and losses on partner and partnership.
(1)Effect on partner.
(i)No effect on liability for income tax of foreign partner.
(ii)No effect on partner's estimated tax obligations.
(iii)No effect on partner's obligation to file U.S. income tax return.
(2)Effect on partnership.
(i)Reasonable reliance to relieve partnership from addition to tax under section 6665.
(ii)Continuing liability for withholding tax under section 1461 and for applicable interest and penalties.
(A)In general.
(B)Certificate defective because of amount or character of deductions and losses.
(3)Partnership level rules and requirements.
(i)Filing requirement.
(ii)Reasonable cause for failure to timely file a valid certificate and computation.
(A)Determining reasonable cause.
(B)Notification.
(e)Examples.
(f)Effective/Applicability date.
(g)Transition rule. § 1.1446-7 Effective/Applicability date. **Par. 3.** For each entry in the table in the “Section” column remove the phrase in the “Remove” column and add the phrase in the “Add” column in its place. Section Remove Add 1.1443-1(a) (First sentence) 1.1446-6T 1.1446-6 1.1446-1(a) 1.1446-6T 1.1446-6 1.1446-1(b) § 1.1446-6T § 1.1446-6 1.1446-1(c)(5) (Second sentence) 1.1446-6T 1.1446-6 1.1446-2(a) (Third sentence) § 1.1446-6T § 1.1446-6 1.1446-2(b)(1) (Second sentence) § 1.1446-6T § 1.1446-6 1.1446-2(b)(1) (Last sentence) 1.1446-6T 1.1446-6 1.1446-2(b)(3)(iii) (First sentence) § 1.1446-6T § 1.1446-6 1.1446-2(b)(3)(iii) (Second sentence) § 1.1446-6T § 1.1446-6 1.1446-2(b)(3)(vii) § 1.1446-6T § 1.1446-6 1.1446-2(b)(5) *Example 3* (Sixth sentence) § 1.1446-6T § 1.1446-6 1.1446-3(b)(2)(v)(F) (Second sentence) § 1.1446-6T § 1.1446-6(c)(1)(ii) 1.1446-3(d)(1)(i) (Third sentence) § 1.1446-6T § 1.1446-6(d)(3) 1.1446-3(d)(1)(iii) (Third sentence) § 1.1446-6T § 1.1446-6 1.1446-3(e)(3)(i) (Last sentence) § 1.1446-6T § 1.1446-6(d)(2)(i) 1.1446-5(f) *Example 1*
(i)(Ninth sentence) § 1.1446-6T § 1.1446-6 **Par. 4.** Section 1.1446-3 is amended by: 1. Removing the acronym “ECTI” from the first sentence in paragraph (b)(1) and adding the language “effectively connected taxable income (ECTI)” in its place. 2. Revising paragraphs (b)(2)(i) and (b)(3)(i)(A). The revisions read as follows: § 1.1446-3 Time and manner of calculating and paying over the 1446 tax.
(b)* * *
(2)* * *
(i)*Application of the principles of section 6655—*
(A)*In general.* Installment payments of 1446 tax required during the partnership's taxable year are based upon partnership ECTI for the portion of the partnership taxable year to which the payments relate, and, except as set forth in this paragraph (b)(2) or paragraph (b)(3) of this section, shall be calculated using the principles of section 6655. The principles of section 6655, except as otherwise provided in § 1.6655-2, are applied to annualize the partnership's items of effectively connected income, gain, loss, and deduction to determine each foreign partner's allocable share of partnership ECTI. Each foreign partner's allocable share of partnership ECTI is then multiplied by the relevant applicable percentage for the type of income allocable to the foreign partner under paragraph (a)(2) of this section. The respective 1446 tax amounts are then added for each foreign partner to yield an annualized 1446 tax with respect to such partner. The installment of 1446 tax due with respect to a foreign partner equals the excess of the section 6655(e)(2)(B)(ii) percentage of the annualized 1446 tax for that partner (or, if applicable, the adjusted seasonal amount) for the relevant installment period, over the aggregate amount of 1446 tax installment payments previously paid with respect to that partner during the partnership's taxable year. The partnership's total 1446 tax installment payment equals the sum of the installment payments due for such period on behalf of all the partnership's foreign partners.
(B)*Calculation rules when certificates are submitted under § 1.1446-6* —( *1* ) To the extent applicable, in computing the 1446 tax due with respect to a foreign partner, a partnership may consider a certificate received from such partner under § 1.1446-6(c)(1)(i) or
(ii)and the amount of state and local taxes permitted to be considered under § 1.1446-6(c)(1)(iii). For this purpose, a partnership shall first annualize the partner's allocable share of the partnership's items of effectively connected income, gain, deduction, and loss before— ( *i* ) Considering under § 1.1446-6(c)(1)(i) the partner's certified deductions and losses; ( *ii* ) Determining under § 1.1446-6(c)(1)(ii) whether the 1446 tax otherwise due with respect to that partner is less than $1,000 (determined with regard to any certified deductions or losses); or ( *iii* ) Considering under § 1.1446-6 (c)(1)(iii) the amount of state and local taxes withheld and remitted on behalf of the partner. ( *2* ) The amount of the limitation provided in § 1.1446-6(c)(1)(i)(C) shall be based on the partner's allocable share of these annualized amounts. For any installment period in which the partnership considers a partner's certificate, the partnership must also consider the following events to the extent they occur prior to the due date for paying the 1446 tax for such installment period— ( *i* ) The receipt of an updated certificate or status update from the partner under § 1.1446-6(c)(2)(ii)(B) certifying an amount of deductions or losses that is less than the amount reflected on the superseded certificate (see § 1.1446-6(e)(2) *Example 4* ); ( *ii* ) The failure to receive an updated certificate or status update from the partner that should have been provided under § 1.1446-6(c)(2)(ii)(B); and ( *iii* ) The receipt of a notification from the IRS under § 1.1446-6(c)(3) or (c)(5) (see § 1.1446-6(e)(2) *Example 5* ).
(3)* * *
(i)* * *
(A)The average of the amount of the current installment and prior installments during the taxable year is at least 25 percent of the total 1446 tax (without regard to § 1.1446-6) for the prior taxable year; **Par. 5.** Section 1.1446-5(c)(2) is amended by adding two new sentences after the first sentence to read as follows: § 1.1446-5 Tiered partnership structures.
(c)* * *
(2)* * * The lower-tier partnership required to pay 1446 tax must be able to provide the information necessary for the IRS to determine the chain of ownership, allocation of effectively connected items at each partnership level, as well as to the ultimate beneficial owner of the effectively connected items, and whether the amount of 1446 tax paid was appropriate. This information should permit each partnership in the tiered structure and the IRS to reliably associate any effectively connected items allocable to such upper-tier partnership, as well as to the ultimate beneficial owner of the effectively connected items. * * * § 1.1446-6T [Removed] **Par. 6.** Section 1.1446-6T is removed. **Par. 7.** Section 1.1446-6 is added to read as follows: § 1.1446-6 Special rules to reduce a partnership's 1446 tax with respect to a foreign partner's allocable share of effectively connected taxable income.
(a)*In general* —(1) *Purpose and scope.* This section provides rules regarding when a partnership required to pay withholding tax under section 1446 (1446 tax), or an installment of 1446 tax, may consider certain partner-level deductions and losses in computing its 1446 tax obligation under § 1.1446-3, or otherwise not pay a de minimis amount of 1446 tax due with respect to a nonresident alien individual partner. A partnership determines the applicability of the rules of this section on a partner-by-partner basis for each installment period and when completing its Form 8804, “Annual Return for Partnership Withholding Tax (Section 1446),” and paying 1446 tax for the partnership taxable year. Except with respect to certain state and local taxes paid by the partnership on behalf of the partner, to apply the rules of this section with respect to a foreign partner, the partnership must receive a certificate from such partner for each partnership taxable year. Paragraph
(b)of this section identifies the foreign partners to which this section applies. Paragraph
(c)of this section identifies the deductions and losses that a foreign partner may certify to the partnership as well as the state and local taxes paid by the partnership on behalf of the foreign partner that can be taken into account without a certification, and establishes an exception that permits a partnership to not pay a de minimis amount of 1446 tax with respect to a nonresident alien partner. Paragraph
(c)of this section also sets forth the requirements for a valid certificate. Paragraphs (a)(2) and
(d)of this section establish when a partnership may rely on and consider a foreign partner's certificate in computing its 1446 tax, and the effects of relying on such a certificate. Paragraph
(d)of this section also describes the effects of a partnership relying on a certificate (including an updated certificate) and the reporting requirements of a partnership with respect to a certificate. Paragraph
(e)of this section sets forth examples that illustrate the rules of this section. Paragraph
(f)of this section provides the Effective/Applicability date. Paragraph
(g)of this section provides a transition rule.
(2)*Reasonable reliance on a certificate.* Subject to § 1.1446-2 and the rules of this section, a partnership receiving a certificate (including an updated certificate or status update under paragraph (c)(2)(ii)(B) of this section) of deductions and losses from a partner provided in accordance with the provisions of this section may reasonably rely on such certificate (to the extent of the certified deductions and losses or other representations set forth in the certificate) until such time that it has actual knowledge or reason to know that the certificate is defective or that the time for receiving an updated certificate or status update from the partner under paragraph (c)(2)(ii)(B) of this section has expired. For this purpose, a partnership shall be considered to have actual knowledge or reason to know that a certificate is defective upon receipt of written notification from the IRS under paragraph (c)(3) or (c)(5) of this section.
(b)*Foreign partner to whom this section applies* —(1) *In general.* Except as otherwise provided in paragraph (b)(3) of this section, a foreign partner to whom this section applies is a foreign partner that meets the requirements of this paragraph (b)(1).
(i)The partner has provided valid documentation to the partnership to which a certificate is submitted under this section in accordance with § 1.1446-1.
(ii)If the partner's current taxable year is the first taxable year in which the partner submits a certificate to any partnership, the partner has filed (or will file) a qualifying U.S. income tax return for each of its three taxable years ending before the end of the partnership's taxable year for which the partner is submitting a certificate (regardless of whether it was a partner in that partnership during each of these years). A qualifying U.S. income tax return for a taxable year that is prior to the first taxable year the partner submits a certificate to any partnership is a U.S. income tax return filed within the time specified in paragraph (b)(2)(iii) of this section.
(iii)If the current taxable year of the partner is not the first taxable year in which the partner submits a certificate to any partnership, the partner met the requirements in paragraph (b)(1)(ii) of this section for the first taxable year in which it submitted a certificate to any partnership and has filed (or will file) a qualifying U.S. income tax return for its first taxable year in which it submitted a certificate to any partnership and each subsequent taxable year ending before the beginning of the current taxable year (regardless of whether it was a partner in any partnership during each of those years). A qualifying U.S. income tax return for a taxable year that is prior to the taxable year the partner submits a certificate to any partnership is a U.S. income tax return filed within the time specified in paragraph (b)(2)(iii) of this section.
(iv)The partner files a qualifying U.S. income tax return (within the meaning of paragraph (b)(2)(iii) of this section) for its taxable year in which a certificate is provided to any partnership.
(2)*Definitions* —(i) *U.S. income tax return.* A U.S. income tax return means a Form 1040NR, “U.S. Nonresident Alien Income Tax Return,” in the case of a nonresident alien individual and a Form 1120F, “U.S. Income Tax Return of a Foreign Corporation,” in the case of a foreign corporation.
(ii)*Timely-filed.* Only for purposes of this section, a U.S. income tax return shall be considered timely-filed if the return is filed on or before the due date set forth in section 6072(c), plus any extension of time to file such return granted under section 6081.
(iii)*Qualifying U.S. income tax return.* A U.S. income tax return shall constitute a qualifying U.S. income tax return if the return reports income or gain that is effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities and if the return is described in paragraph (b)(2)(iii)(A), (B), or
(C)of this section. A protective return described in § 1.874-1(b)(6) or § 1.882-4(a)(3)(vi) is not a qualifying U.S. income tax return for purposes of this section.
(A)A U.S. income tax return for a partner's preceding taxable year in which it did not submit a certificate to any partnership (but not including a taxable year following the first taxable year in which the partner submitted a certificate to any partnership), with a due date as set forth in section 6072(c), not including any extensions of time to file, which falls before the beginning of the current partnership taxable year for which the certificate is provided is described in this paragraph (b)(2)(iii)(A) if the return is filed and all amounts due with respect to such return (including interest, penalties, and additions to tax, if any) are paid on or before the earlier of— *(1)* The date that is one year after the due date set forth in section 6072(c) for such return, not including any extensions of time to file; or *(2)* The date on which the certificate for the current partnership taxable year is submitted to the partnership.
(B)A U.S. income tax return for a partner's preceding taxable year in which it did not submit a certificate to any partnership (but not including a taxable year following the first taxable year in which the partner submitted a certificate to any partnership), with a due date as set forth in section 6072(c), not including any extensions of time to file, which falls within the current partnership taxable year for which the certificate is provided is described in this paragraph (b)(2)(iii)(B) if the return is timely-filed and all amounts due with respect to such return are timely paid.
(C)A U.S. income tax return for a taxable year in which the partner submits a certificate to any partnership and for a taxable year following the first taxable year in which the partner submits a certificate to any partnership is described in this paragraph (b)(2)(iii)(C) if the return is timely-filed and all amounts due with such return are timely paid with respect to such return.
(3)*Special rules* —(i) In the case of a partnership (upper-tier partnership) that is a partner in another partnership (lower-tier partnership)—
(A)The rules of this section may apply to reduce or eliminate the 1446 tax (or any installment of such tax) of the lower-tier partnership with respect to a foreign partner of the upper-tier partnership only to the extent the provisions of § 1.1446-5 apply to look through the upper-tier partnership to the foreign partner of such upper-tier partnership and the certificate described in paragraph
(c)of this section is provided by such foreign partner to the upper-tier partnership and, in turn, provided to the lower-tier partnership with other appropriate documentation (see § 1.1446-5(c) and (e));
(B)An upper-tier partnership that submits a certificate of deductions and losses or a de minimis certificate to a lower-tier partnership may not submit that certificate to another lower-tier partnership;
(C)An upper-tier partnership that relies on a certificate submitted to it by a foreign partner under this section for computing its 1446 tax due on effectively connected taxable income
(ECTI)allocable to that partner (other than ECTI allocable to it from a lower-tier partnership) may not submit that certificate to any lower-tier partnership; and
(D)In addition to any other information required by this section, a lower-tier partnership must submit with a Form 8813, “Partnership Withholding Tax Payment Voucher (Section 1446),” and Form 8805, “Foreign Partner's Information Statement of Section 1446 Withholding Tax,” for which it relies on a certificate from an upper-tier partnership to reduce the 1446 tax due with respect to a foreign partner of the upper-tier partnership, sufficient information so that the IRS may reliably associate the ECTI and the certificate of deductions and losses with the partner in the upper-tier partnership submitting the certificate, including the name, taxpayer identification number
(TIN)and allocation of effectively connected items at each partnership tier, as well as to the ultimate upper-tier partner submitting the certificate.
(ii)This section shall not apply to a partner that is a foreign estate or its beneficiaries.
(iii)This section shall not apply to a partner that is a trust or to its beneficiaries, except to the extent that such trust is owned by a grantor or other person under subpart E of subchapter J of the Internal Revenue Code, the documentation requirements of § 1.1446-1 have been met by the grantor or other owner of such trust, and the certificate described in paragraph
(c)of this section is provided by the grantor or other owner of such trust to the partnership.
(iv)This section shall not apply to a partner in a publicly-traded partnership subject to § 1.1446-4.
(c)*Reduction of 1446 tax with respect to a foreign partner* —(1) *General rules.* Under paragraph (c)(1)(i) of this section a foreign partner to whom this section applies may certify to a partnership for a partnership taxable year that it has certain deductions (other than charitable deductions) and losses properly allocated and apportioned to gross income that is effectively connected (or treated as effectively connected) with the conduct of the partner's trade or business in the United States, and that the partner reasonably expects those deductions and losses to be available and claimed on the partner's U.S. income tax return to be filed for that taxable year. Under paragraph (c)(1)(ii) of this section, a nonresident alien individual partner to whom this section applies may also certify to a partnership for a partnership taxable year that its only investment or activity giving rise to effectively connected items for the partnership's taxable year that ends with or within the partner's taxable year is (and will be) the partner's investment in the partnership. A certificate submitted by a foreign partner to a partnership under this section must be in accordance with the form and requirements set forth in paragraph (c)(2)(ii) of this section. Under paragraph (c)(1)(iii) of this section, a partnership may take into account certain state and local taxes withheld by the partnership on behalf of the partner.
(i)*Certified deductions and losses* —(A) *Deductions and losses from the partnership.* Under this paragraph (c)(1)(i)(A), a partner may certify to a partnership for a partnership taxable year deductions (other than charitable deductions) and losses properly allocated and apportioned to gross income which is effectively connected (or treated as effectively connected) with the conduct of the partner's trade or business in the United States, that are reported on a Form 1065 (Schedule K-1), “Partner's Share of Income, Credits, Deductions, etc.,” issued (or to be issued) to the partner by the partnership for a prior partnership taxable year, that are (or will be) reported on a qualifying U.S. income tax return for a partner's taxable year that ends before the installment due date or the close of the partnership taxable year for which the partner is certifying such deductions and losses, and that the partner reasonably expects to be available and claimed on a qualifying U.S. income tax return for the partner's taxable year ending with or after the close of the partnership taxable year. A partner that has a loss reported on a Form 1065 (Schedule K-1) issued (or to be issued) to the partner by the partnership for a prior partnership taxable year, but that is not (and will not be) reported on a qualifying U.S. income tax return for a prior taxable year of the partner because the loss is suspended under section 704(d) may also certify such suspended loss to the partnership under this paragraph (c)(1)(i)(A).
(B)*Deductions and losses from other sources.* Under this paragraph (c)(1)(i)(B), a foreign partner may certify to a partnership for a partnership taxable year deductions (other than charitable deductions) and losses properly allocated and apportioned to gross income that is effectively connected (or treated as effectively connected) with the conduct of the partner's trade or business in the United States and that are from sources other than the partnership to whom the certificate is submitted if the deductions and losses are (or will be) reported on a qualifying U.S. income tax return of the partner for a taxable year that ends before the installment due date or the close of the partnership taxable year for which the partner is certifying the deductions and losses and the partner reasonably expects the deductions and losses to be available and claimed on the qualifying U.S. income tax return filed for its taxable year ending with or after the close of the partnership taxable year. Any deductions and losses certified under this paragraph (c)(1)(i)(B) that are allocated to the partner from another partnership must be reported on a Form 1065 (Schedule K-1) issued (or to be issued) to the partner by such other partnership. However, the partner may not certify any deduction or loss allocated to it from another partnership that is suspended under section 704(d).
(C)*Limit on the consideration of a partner's net operating loss deduction.* A partnership may not consider a net operating loss deduction (as determined under section 172) certified by the partner under this paragraph (c)(1)(i) in an amount greater than the percentage limitation, if any, provided in section 56(a)(4) and
(d)multiplied by the partner's allocable share of ECTI from the partnership reduced by all other certified deductions and losses whether or not taken into account by the partnership, as well as deductions considered under paragraph (c)(1)(iii) of this section.
(D)*Limitation on losses subject to certain partner level limitations.* Pursuant to paragraph (c)(2)(i) of this section, a partner must identify any certified losses or deductions that are subject to special limitations at the partner level (for example, sections 465 and 469) and provide information to the partnership that will allow the partnership to take the special limitations into account. For example, where a partner certifies a loss to the partnership that is a passive activity loss under section 469, the partner shall identify the activities the partnership conducts that the partner expects will be passive activities. The partnership shall then ensure that these limitations are taken into account when determining the 1446 tax due with respect to the partner.
(E)*Certification of deductions and losses to other partnerships.* Deductions and losses certified to a partnership for a taxable year of the partnership may not be certified for the taxable year of another partnership that begins or ends with or within the taxable year of the partnership to which the deductions and losses were certified.
(F)*Partner level use of deductions and losses certified to a partnership.* Any deductions and losses certified to a partnership for a taxable year of the partner and considered by the partnership in computing its section 1446 tax due may not be considered by that partner for the same taxable year in computing the amount of its required installments under section 6654(d) or 6655(d) on income unrelated to the partnership to which the partner has submitted the certificate.
(ii)*De minimis certificate for nonresident alien individual partners* —(A) *In general.* Under this paragraph (c)(1)(ii), a nonresident alien individual partner to whom this section applies and that satisfies the requirements of paragraph (c)(1)(ii)(B) of this section may certify to a partnership that its only activity giving rise to effectively connected income, gain, deduction, or loss for the partnership's taxable year that ends with or within the partner's taxable year is (and will be) the partner's investment in the partnership. A partnership that receives a certificate from a nonresident alien partner under this paragraph (c)(1)(ii) and that may reasonably rely on such certificate is not required to pay 1446 tax (or any installment of such tax) with respect to such partner if the partnership estimates that the annualized (or, in the case of a partnership completing its Form 8804, the actual) 1446 tax otherwise due with respect to such partner is less than $1,000, without taking into account any deductions or losses certified by the partner to the partnership under paragraph (c)(1)(i) of this section or any amounts under paragraph (c)(1)(iii) of this section.
(B)*Requirements for exception.* The requirements of this paragraph (c)(1)(ii)(B) are met if the nonresident individual alien partner's only activity giving rise to effectively connected income, gain, deduction, or loss for the partnership taxable year that ends with or within the partner's taxable year is (and will be) the partner's investment in the partnership. For this purpose, if the partner has (or has reason to expect to have) income or gain described in section 864(c)(6), such income or gain shall be considered derived from a separate investment activity. A certificate submitted by a nonresident alien individual partner under this paragraph (c)(1)(ii) is valid even if such certificate does not certify deductions and losses to partnership under this section. A nonresident alien individual partner that submits a certificate to a partnership under this paragraph (c)(1)(ii) must notify the partnership in writing and revoke such certificate within 10 days of the date that the partner invests or otherwise engages in another activity that may give rise to effectively connected income, gain, deduction, or loss for the partner's taxable year. For example, while an investment in a U.S. real property interest (as defined in section 897(c)) would not give rise to an activity requiring a notification (unless an election is in effect under section 871(d)), the disposition of the U.S. real property interest would give rise to an activity requiring a notification.
(iii)*Consideration of certain current year state and local taxes.* In addition to any deductions and losses certified by a foreign partner to a partnership under paragraph (c)(1)(i) of this section, the partnership may consider as a deduction of such partner 90-percent of any state and local income taxes withheld and remitted by the partnership on behalf of such partner with respect to the partner's allocable share of partnership ECTI. The partnership may consider the amount of state and local taxes of the foreign partner determined under this paragraph (c)(1)(iii) regardless of whether the foreign partner submits a certificate to the partnership under paragraph (c)(1)(i) or
(ii)of this section.
(2)*Form and time of certification* —(i) *Form of certification.* A partner's certification to a partnership under paragraph (c)(1)(i) or
(iii)of this section shall be made using Form 8804-C, “Certificate Of Partner-Level Items to Reduce Section 1446 Withholding” in accordance the instructions of the form and the rules of this section.
(ii)*Time for certification provided to partnership* —(A) *First certificate submitted for a partnership's taxable year.* Provided the other requirements of this section are met, a partnership may only rely on the first certificate received from a foreign partner for any 1446 tax installment due or Form 8804 filing due (without regard to extensions) on or after the date on which the certificate is received. See § 1.1446-3 for 1446 tax installment due dates. See also paragraph
(e)of this section for examples illustrating the rules of this paragraph (c)(2).
(B)*Updated certificates and status updates* —( *1* ) *Preceding year tax returns not yet filed.* If a foreign partner's U.S. income tax return for a preceding taxable year has not been filed as of the time the partner submits to the partnership its first certificate under this paragraph (c), the certificate shall specify this fact and set forth the filing due date for such return set forth in section 6072(c), plus any extension of time to file such return granted under section 6081 and the regulations under section 6081. The partner shall also submit an updated certificate to the partnership in accordance with this paragraph
(c)within 10 days of the date the partner files its U.S. income tax return for any such taxable year. In addition, prior to the partnership's final 1446 tax installment due date the partner shall provide to the partnership, under penalties of perjury, a status update regarding any U.S. income tax return for the prior taxable year that has not (or will not) be filed as of the final installment due date. The status update must identify the due date, set forth in section 6072(c), plus any extension of time to file such return granted under section 6081 and the regulations under section 6081, for any un-filed return identified in the first certificate and state whether the first certificate submitted may continue to be considered by the partnership. If the partnership does not receive an updated certificate or a status update from the partner prior to the partnership's final installment due date, the partnership shall disregard the partner's certificate when computing the 1446 tax due with respect to that partner for the final installment period and when completing its Form 8804 for the taxable year. In addition, the foreign partner shall not be permitted to submit an additional or substitute certificate for the disregarded certificate. See § 1.1446-3(b)(2)(i) for computation requirements for installment payments of 1446 tax when a partnership receives, or fails to receive, an updated certificate or status update. See also paragraph (e)(2) *Examples 4 and 8* of this section. Notwithstanding this paragraph (c)(2)(ii)(B)( *1* ), a partner that can meet the requirements of this section for a subsequent partnership taxable year may submit a certificate to the partnership under this section for such taxable year. ( *2* ) *Other circumstances requiring an updated certificate.* If at any time during the partnership taxable year the partner determines that its most recent certificate furnished to the partnership for such taxable year is incorrect, then the partner shall submit to the partnership an updated certificate in accordance with this paragraph
(c)within 10 days of such determination. For example, if the partner determines that the amount or character of the certified deductions or losses is incorrect, the partner shall submit an updated certificate to the partnership. See § 1.1446-3(b)(2)(i) for computation requirements for installment payments of 1446 tax when a partnership receives an updated certificate. ( *3* ) *Form and content of updated certificate.* The updated certificate required by this paragraph (c)(2)(ii) must be provided using the form and instructions identified in paragraph (c)(2)(i) of this section. The updated certificate must indicate that it is an updated certificate filed in accordance with this paragraph (c)(2)(ii). The partner is not required to attach to the updated certificate a copy of the certificate that is being updated (superseded certificate). ( *4* ) *Partnership consideration of an updated certificate.* A partnership may consider an updated certificate, that meets the requirements of this paragraph (c), that is received prior to an installment due date in the same partnership taxable year for which the superseded certificate was provided, or prior to the due date of its Form 8804 (without regard to extensions) to be filed for the year the superseded certificate was provided. A partnership must consider an updated certificate that meets all the requirements of this paragraph
(c)if it would increase the amount of 1446 tax the partnership would pay by the next installment due date, if any, or the due date of its Form 8804. An updated certificate considered by the partnership under this paragraph (c)(2)(ii)(B)(4) supersedes all prior certificates submitted by the foreign partner for the same partnership taxable year, beginning with the installment period or Form 8804 filing date for which the partnership considers the updated certificate. See paragraph (e)(2) *Example 4* of this section.
(3)*Notification to partnership when a partner's certificate cannot be relied upon.* If the IRS determines, in its discretion based on all the facts and circumstances, that a foreign partner's certificate is defective (or that it lacks information sufficient to make this determination after providing written request for such information to the partnership), the IRS shall notify the partnership of such determination in writing. Upon receipt of such written notification, the partnership shall not rely on any certificate submitted by that foreign partner for the partnership taxable year to which the defective certificate relates (or any subsequent partnership taxable year), until the IRS provides written notification to the partnership revoking or modifying the original written notification. For purposes of this section, a foreign partner's certificate of deductions and losses shall be defective if—
(i)The partner is not described in paragraph
(b)of this section;
(ii)Any deductions or losses set forth in such certificate are not described in paragraph (c)(1)(i) of this section;
(iii)The timing requirements under paragraph (c)(2) of this section for submitting an original certificate, an updated certificate or a status update to the partnership are not met;
(iv)The certificate does not include all of the information required by paragraph (c)(2)(i) of this section;
(v)Any representation made on the certificate is incorrect;
(vi)The actual amount of deductions and losses available to the partner is less than the amount of deductions and losses certified to the partnership for the partnership taxable year and considered by the partnership in determining its 1446 tax due; or
(vii)There is a failure to comply with any other provision of this section.
(4)*Partner to receive copy of notice.* If the IRS notifies a partnership under paragraph (c)(3) of this section that a certificate of a foreign partner is defective, the IRS shall send a copy of such notice to the partner's address as shown on the certificate. The partnership shall also promptly furnish a copy of the IRS notice to such partner.
(5)*Notification to partnership when no foreign partner's certificate can be relied upon.* If the IRS determines, in its discretion based on all the facts and circumstances, that there would be a substantial reduction in section 1446 tax as a result of the submission of one or more defective certificates or that a substantial portion of all certificates being submitted by partners to the partnership and by the partnership to the IRS are defective (or lack information sufficient to make this determination), then the IRS shall notify the partnership of such determination in writing. Upon receipt of such written notification, the partnership shall not rely on any certificate submitted by any partner for the partnership taxable year to which the notice relates or any subsequent partnership taxable year, until the IRS provides written notification to the partnership revoking or modifying the original notice.
(6)*Partnership notification to partner regarding use of deductions and losses.* Unless § 1.1446-3(d)(1)(i)(A) or
(B)applies (relating to waiver of notice of tax paid during the partnership taxable year), a partnership must notify each foreign partner of the amount of such partner's certified deductions and losses and state and local taxes, if any, taken into account under this paragraph
(c)in determining the 1446 tax due with respect to such partner for each installment period or Form 8804 filing date, as applicable.
(7)*Partner's certificate valid only for partnership taxable year for which submitted.* A partnership that receives a certificate from a partnership under this paragraph
(c)shall consider such certificate only for the partnership taxable year for which the certificate is submitted, as set forth on the certificate.
(d)*Effect of certificate of deductions and losses on partners and partnership* —(1) *Effect on partner* —(i) *No effect on liability for income tax of foreign partner.* A foreign partner that certifies deductions and losses to a partnership under this section is not relieved of liability for income tax on its allocable share of ECTI from the partnership. Further, the submission of a certificate under this section does not constitute an acceptance by the IRS of the amount or character of the deductions or losses certified therein.
(ii)*No effect on partner's estimated tax obligations.* A foreign partner that certifies deductions and losses to a partnership under this section is not relieved of any estimated tax obligation otherwise applicable to such partner with respect to income or gain allocated to such partner from the partnership.
(iii)*No effect on partner's obligation to file U.S. income tax return.* The submission of a certificate under paragraph
(c)of this section does not relieve the foreign partner from its obligation to file a U.S. income tax return even if as a result of the partnership considering the certificate the partner would have no additional tax due with such return. See also § 1.1446-3(f).
(2)*Effect on partnership* —(i) *Reasonable reliance to relieve partnership from addition to tax under section 6655.* A partnership that has reasonably relied on a certificate received from a foreign partner and complied with the filing requirements of paragraph (d)(3)(i) of this section, shall not be liable for any addition to tax under section 6655 (as applied through § 1.1446-3) for any period during which the partnership reasonably relied on such certificate, even if such certificate is later determined to be defective or the partner submits an updated certificate under paragraph (c)(2) of this section that increases the 1446 tax due with respect to such partner.
(ii)*Continuing liability for withholding tax under section 1461 and for applicable interest and penalties* —(A) *In general.* Except as otherwise provided in this section, a partnership that has reasonably relied on a certificate received from a foreign partner and complied with the filing requirements of paragraph (d)(3)(i) of this section, is not relieved from liability for the 1446 tax (or any installment of such tax) under section 1461, any additions to the tax, interest or penalties. However, the partnership may be relieved of additions to the tax or penalties in certain circumstances. See §§ 301.6651-1(c) and 301.6724-1 of this chapter. Further, see § 1.1446-3(e) which deems a partnership to have paid 1446 tax with respect to ECTI allocable to a partner in certain circumstances. See also paragraph (e)(2) *Example 5* of this section.
(B)*Certificate defective because of amount or character of deductions and losses.* If a certificate is determined to be defective because the actual amount of deductions and losses available to the partner is less than the amount reflected on the certificate (other than when it is determined that the partner certified the same deduction or loss to more than one partnership), or because the character of the certified deductions and losses is erroneous, the partnership shall be liable for 1446 tax under section 1461 (or any installment of such tax) with respect to such partner to the extent the partnership considered an amount of certified deductions and losses greater than the amount actually available to the partner and permitted to be used under §§ 1.1446-1 through 1.1446-5 and this section, or to the extent that the proper character of the certified deductions and losses results in a greater amount of 1446 tax due with respect to such partner. See paragraph (e)(2) *Example 6* of this section.
(3)*Partnership level rules and requirements* —(i) *Filing requirement.* A partnership that relies in whole or in part on a certificate received from a partner under this section in computing its 1446 tax due with respect to such partner must still file Form 8813 or Form 8804 and 8805, whichever is applicable, for the period for which the certificate is considered, even if as a result of relying on the certificate no 1446 tax (or an installment of such tax) is due with respect to such foreign partner. See generally § 1.1446-3(d)(1). Except as otherwise provided in this paragraph (d)(3)(i), the partnership must attach a copy of the foreign partner's certificate, and the computation of the 1446 tax due with respect to such partner, to both the Form 8813 and Form 8805 filed with the IRS for any installment period or year for which such certificate is considered in computing the partnership's 1446 tax. See § 1.1446-3(d)(1)(iii) requiring the partnership to furnish Form 8805 to the IRS and such foreign partner even if no 1446 tax is paid on behalf of the partner. The partnership must include in that computation the amount of state and local taxes described in paragraph (c)(1)(iii) of this section taken into account in computing the 1446 tax due with respect to that partner. The partnership must also attach a computation of the 1446 tax due with respect to a partner for whom only state and local taxes described in paragraph (c)(1)(iii) are taken into account. For an installment period other than the first installment period for which the partnership considers a foreign partner's certificate or updated certificate, the partnership may, instead of attaching any partner's certificate, attach to Form 8813 a list containing the name, TIN, the amount of certified deductions and losses, and the amount of state and local taxes the partnership may consider under paragraph (c)(1)(iii) of this section for each foreign partner whose certificate was relied upon. For purposes of the preceding sentence, if the partnership is relying on a certificate received under paragraph (c)(1)(ii) of this section, instead of providing the amounts described in the prior sentence, it should attach a statement to Form 8813 which provides that, relying on that certificate, no 1446 tax is due with respect to that partner.
(ii)*Reasonable cause for failure to timely file a valid certificate and computation.* This paragraph (d)(3)(ii) provides the sole source of relief for a partnership that fails to timely file a valid certificate or attach a computation of 1446 tax as required under paragraph (d)(3)(i) of this section. To permit the partnership to reasonably rely on such certificate, the partnership shall be considered to have satisfied the requirements of paragraph (d)(3)(i) of this section if the partnership demonstrates to the Area Director, Field Examination, Small Business/Self-Employed or the Director, Field Operations, Large and Mid-Size Business (Director) having jurisdiction of the partnership's return for the taxable year, that such failure was due to reasonable cause and not willful neglect and if once the partnership becomes aware of the failure, the partnership attaches the certificate and computation, as well as a written statement setting forth the reasons for the failure to comply with the requirements of paragraph (d)(3)(i) of this section, to an amended Form 8813 or amended Forms 8804 and 8805 for the relevant period.
(A)*Determining reasonable cause.* In determining whether the partnership has reasonable cause, the Director shall consider whether the partnership acted reasonably and in good faith considering all the facts and circumstances.
(B)*Notification.* If the IRS has notified, as provided in paragraph (c)(3) of this section, the partnership that the certificate is defective or that no foreign partner's certificate may be relied upon, as provided in paragraph (c)(5) of this section, the partnership will be deemed not to have acted reasonably and in good faith. Otherwise, the Director shall notify the partnership in writing within 120 days of the amended filing if it is determined that the failure to comply was not due to reasonable cause, or if additional time will be needed to make such determination. If the Director fails to notify the partnership within 120 days of the amended filing, the partnership shall be considered to have demonstrated to the Director that such failure was due to reasonable cause and not willful neglect.
(e)*Examples.*
(1)The rules of this section are illustrated by the examples in paragraph (e)(2) of this section. Except as otherwise provided, in each example assume:
(i)Section 1.1446-3(b)(2)(v)(F) (relating to the de minimis exception to paying 1446 tax) does not apply;
(ii)Paragraph (c)(1)(ii) of this section (relating to a nonresident alien individual partner whose sole investment generating effectively connected income or gain is the partnership) does not apply;
(iii)All income and losses are ordinary;
(iv)For purposes of applying paragraph (c)(1)(i)(C) of this section, the percentage limitation under section 56(a)(4) and
(d)is 90 percent;
(v)Any loss is not a passive activity loss within the meaning of section 469;
(vi)The partnership uses an acceptable annualization method under § 1.1446-3;
(vi)NRA is a nonresident alien individual who maintains a calendar taxable year for U.S. tax purpose;
(vii)B and C are U.S. individuals who maintain a calendar taxable year; and
(viii)Any partnership maintains a calendar taxable year.
(2)The examples are as follows: Example 1. *Qualifying U.S. income tax return.*
(i)NRA and B form a partnership
(PRS)in year 4 to conduct a trade or business in the United States. NRA and B provide PRS appropriate documentation under § 1.1446-1 to establish their status for purposes of section 1446. NRA submits a certificate to PRS (using Form 8804-C) on March 20, year 4, to be considered by PRS in determining its 1446 tax due with respect to NRA for the first installment period in the year 4. The Form 8804-C states that NRA reasonably expects to have an effectively connected net operating loss of $5,000 available to offset its allocable share of ECTI from PRS in year 4. Prior to year 4, NRA had not submitted a certificate to a partnership under this section. NRA filed (or will file) its year 1 U.S. income tax return on March 11, year 3; its year 2 U.S. income tax return on February 12, year 4; its year 3 U.S. income tax return on April 13, year 4; and its year 4 U.S. income tax return on May 14, year 5. NRA paid or (will pay) all amounts due with respect to the returns (including interest, penalties, and additions to tax, if any) by the date they are filed. NRA's years 1 though 3 U.S. income tax returns report income or gain effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities.
(ii)To be eligible to submit a certificate of deductions and losses to PRS under this section, NRA must satisfy the requirements of paragraph (b)(1) of this section. In accordance with § 1.1446-1, NRA provided valid documentation to PRS to establish its status for purposes of section 1446. NRA's year 1 U.S. income tax return is a qualifying U.S. income tax return because it reported income or gain effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities and is described under paragraph (b)(2)(iii)(A) of this section. Although NRA filed its year 1 return after the due date of the return (determined under section 6072(c) without regard to any extension of time to file) the return was filed on March 11, year 3, which was on or before the earlier of June 15, year 3, the date one year after its section 6072(c) due date without regard to any extension of time to file, and March 20, year 4, the date on which NRA submitted the certificate to PRS. NRA's year 2 U.S. income tax return is a qualifying U.S. income tax return because it reported income or gain effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities and is described under paragraph (b)(2)(iii)(A) of this section. Although NRA filed its year 2 return after the due date of the return (determined under section 6072(c) without regard to any extension of time to file) the return was filed on February 12, year 4, which was on or before the earlier of June 15, year 4, the date one year after its section 6072(c) due date without regard to any extension of time to file, and March 20, year 4, the date on which NRA submitted the certificate to PRS. NRA's year 3 U.S. income tax return is a qualifying U.S. income tax return because it reported income or gain effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities and is described under paragraph (b)(2)(iii)(B) of this section. Because NRA filed its year 3 U.S. income tax return on April 13, year 4, the return will be considered timely-filed under paragraph (b)(2)(ii) of this section, as the due date under section 6072(c) was June 15, year 4. NRA's year 4 U.S. income tax return is a qualifying U.S. income tax return because it reported income or gain effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities and is described under paragraph (b)(2)(iii)(C) of this section. Because NRA filed its year 4 U.S. income tax return on May 14, year 5, the return will be considered timely-filed under paragraph (b)(2)(ii) of this section. Accordingly, NRA meets the conditions of paragraph (b)(1) of this section and is eligible to provide a certificate of deductions and losses to PRS for year 4. Example 2. *Subsequent year qualifying U.S. income tax return.*
(i)Assume the same facts as in Example 2. Further, NRA and C form a second partnership
(XYZ)in year 7 to conduct a trade or business in the United States. NRA and C provide XYZ appropriate documentation under § 1.1446-1 to establish their status for purposes of section 1446. NRA did not submit a certificate under this section to any partnership for years 5 and 6. NRA submits a certificate to XYZ (using Form 8804-C) on April 10, year 7, to be considered by XYZ in determining its 1446 tax due with respect to NRA for its first installment period in year 7. The certificate states that NRA reasonably expects to have an effectively connected net operating loss of $8,000 available to offset its allocable share of ECTI from XYZ in year 7. Further, the certificate contains all of the necessary representations required under this section. NRA will file its U.S. income tax return for year 5 on March 25, year 7, (after its section 6072(c) due date and any extension of time to file that could have been granted under section 6081), its U.S. income tax return for year 6 on April 26, year 7; and its U.S. income tax return for year 7 on May 27, year 8. NRA will pay all amounts due with the returns (including interest, penalties, and additions to tax, if any) by the dates they are filed. NRA's years 5, 6, and 7 U.S. income tax returns will report income or gain that is effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities.
(ii)To be eligible to submit a certificate of deductions and losses to XYZ under this section, NRA must satisfy the requirements of paragraph (b)(1) of this section. NRA provided valid documentation to XYZ in accordance with § 1.1446-1. As described in Example 2, NRA's year 4 U.S. income tax return is a qualifying U.S. income tax return because it will report income or gain effectively connected with a U.S. trade or business and is described under paragraph (b)(2)(iii)(C) of this section. Although NRA's year 5 U.S. income tax return reports income or gain effectively connected with a U.S. trade or business or deductions or losses properly allocated and apportioned to such activities it is not a qualifying U.S. tax return under paragraph (b)(2)(iii) of this section. Because NRA submitted a certificate to PRS in year 4, to constitute a qualifying U.S. income tax return the year 5 U.S. income tax return must be timely-filed and all amounts due with such return must be timely paid. See paragraph (b)(2)(iii)(C) of this section. However, NRA will not file its U.S. income tax return for year 5 until March 25, year 7, (after its section 6072(c) due date and any extension of time to file that could have been granted under section 6081). Because the year 5 tax return is not a qualifying U.S. income tax return under paragraph (b)(2)(iii) of this section, NRA does not satisfy the requirements of paragraph (b)(1)(ii) of this section and, therefore, may not submit a certificate of deductions and losses to XYZ under this section in year 7. Example 3. *General application of the rules of this section.* NRA and B form a partnership
(PRS)to conduct a trade or business in the United States. NRA and B are equal partners under the partnership agreement. NRA and B provide PRS appropriate documentation under § 1.1446-1 to establish their status for purposes of section 1446. Prior to the formation of PRS, NRA had not invested in or engaged in the conduct of a U.S. trade or business. PRS incurs a $1,500 effectively connected net operating loss in years 1 and 2. The loss incurred in each is allocated equally between NRA and B. NRA has filed a qualifying U.S. income tax return (within the meaning of paragraph (b)(2)(iii) of this section) for years 1 and 2 that report its allocable share of effective connected net operating loss allocated to it from PRS, as reported on the Form 1065 (Schedule K-1) issued to NRA for each year.
(i)In year 3, NRA may not submit a certificate to PRS under paragraph
(c)because it will not have filed qualifying U.S. income tax returns for the preceding three years. In year 3, PRS has ECTI of $1,000 that is allocated equally between NRA and B. PRS satisfies its 1446 tax obligation with respect to NRA for year 3.
(ii)In year 4, PRS estimates that it will have ECTI of $4,000, which will be allocated equally between NRA and B. On or before April 15th of year 4 (the first installment due date), NRA submits a certificate to PRS under this section (using Form 8804-C) certifying that it reasonably expects to have an effectively connected net operating loss of $1,000 ($750 loss in both years 1 and 2, less $500 of income in year 3) available to offset its allocable share of ECTI from PRS in year 4. As of the date the certificate is submitted, NRA has received the Form 1065 (Schedule K-1) from PRS for year 3 but has not yet filed its U.S. income tax return for year 3.
(iii)With respect to year 4, and based upon paragraph (b)(1) of this section, NRA can include year 3 (NRA's preceding taxable year) as one of the preceding three years that it has filed or will file qualifying U.S. income tax returns (within the meaning of paragraph (b)(2)(iii) of this section). Therefore, provided PRS has, in accordance with paragraph (a)(2) of this section, no actual knowledge or reason to know the certificate is defective, PRS may reasonably rely on NRA's certificate. Accordingly, PRS may consider NRA's certificate to reduce the 1446 tax that would otherwise be required to be paid on NRA's behalf. Specifically, subject to paragraph (c)(1)(i)(C) of this section, the $1,000 of net losses that have been reported on Forms 1065 (Schedule K-1) issued to NRA that are available to reduce NRA's U.S. income tax on NRA's allocable share of effectively connected income or gain allocable from PRS may be used to reduce the $2,000 of ECTI estimated to be allocable to NRA. As a result, PRS must pay 1446 tax on only $1,100 of NRA's allocable share of partnership ECTI for the first installment period in year 5 ($2,000−($1,000 × .90)). PRS must pay 1446 tax of $96.25 for its first installment period with respect to the ECTI allocable to NRA ($1,100 (net ECTI after considering certified losses) × .35 (withholding tax rate) × .25 (section 6655(e)(2)(B) percentage for the first installment period)). See § 1.1446-3(b)(2). Pursuant to paragraph (d)(3) of this section, PRS must attach NRA's certificate and PRS's computation of its 1446 tax obligation with respect to NRA to its Form 8813, “Partnership Withholding Tax Payment Voucher (Section 1446),” filed for the first installment period. Under paragraph (c)(2)(ii)(B) of this section, NRA is required to provide an updated certificate on or before the 10th day after NRA files its U.S. income tax return for year 3, even if the updated certificate results in no change to the amount of deductions and losses reported on the superseded certificate.
(iv)The results are the same if NRA had not yet received a Form 1065 (Schedule K-1) from PRS for year 3. See paragraph (c)(1)(i)(A) of this section. Example 4. *Updated certificate submitted for losses.* On January 1, year 8, NRA and B form a partnership
(PRS)to conduct a trade or business in the United States. NRA and B are equal partners in PRS. NRA and B provide PRS appropriate documentation under § 1.1446-1 to establish their status for purposes of section 1446. During years 1 through 7 NRA held an interest in another partnership
(XYZ)that conducted a trade or business in the United States. NRA timely-filed (within the meaning of paragraph (b)(2) of this section) a U.S. income tax return years 1 through 6 reporting its allocable year of ECTI (or loss) from XYZ (and timely paid all tax shown on such returns). NRA files its U.S. income tax return for year 7 on June 9, year 8 (and timely pays all tax due with such return). Therefore, NRA has filed qualifying U.S. income tax returns (within the meaning of paragraph (b)(2)(iii) of this section) for years 1 through 7. During years 1 through 7, NRA's only investment generating effectively connected items was its interest in XYZ. The XYZ partnership liquidated and ceased doing business on December 31, year 7.
(i)On or before April 15, year 8, PRS receives from NRA a valid certificate under this section using Form 8804-C in which NRA certifies that it reasonably expects to have available effectively connected net operating losses in the amount of $5,000. Among other statements made in accordance with paragraph
(c)of this section, NRA represents that it has not yet filed its year 7 U.S. income tax return, but will timely file such return (and timely pay all tax due with such return). For its first installment period in year 8, PRS estimates that it will earn taxable income of $10,000 for the year which will be allocated equally to NRA and B (NRA's allocable share of PRS's ECTI is $5,000).
(ii)Provided PRS has, in accordance with paragraph (a)(2) of this section, no actual knowledge or reason to know the certificate is defective, PRS may reasonably rely on NRA's certificate when computing its 1446 tax obligation for the first installment period. PRS is limited under paragraph (c)(1)(i)(C) of this section and PRS may only consider $4,500 ($5,000 × .90) of the certified net operating loss. After consideration of the certified loss, PRS owes 1446 tax in the amount of $43.75 for the first installment period ($5,000 estimated allocable ECTI less $4,500 (certified loss as limited under paragraph (c)(1)(i)(C)) × .35 (1446 tax applicable percentage) × .25 (section 6655(e)(2)(B) percentage for the first installment period)). See § 1.1446-3(b)(2). Pursuant to paragraph (d)(3) of this section, PRS must attach a copy of NRA's certificate and the computation of 1446 tax due with respect to NRA to the Form 8813 filed with respect to NRA.
(iii)PRS's estimate of ECTI allocable to NRA for the second installment period remains unchanged from the first installment period. On June 10, year 8, NRA provides PRS an updated certificate reporting that NRA now reasonably expects to have an effectively connected net operating loss of $4,000 available to offset its allocable share of ECTI from PRS in year 4. NRA provided the updated certificate within 10 days of filing its U.S. income tax return for the year 7 taxable year, as required by paragraph (c)(2)(ii)(B) of this section. Provided the updated certificate is otherwise valid, PRS may rely on the updated certificate for the second installment period (due date June 15, year 8). Even if the updated certificate were not valid, PRS could no longer rely on the original certificate.
(iv)Under paragraph
(d)of this section, PRS is not relieved from liability for the 1446 tax due with respect to NRA under section 1461 if it relies on a certificate determined to be defective, or if it receives an updated certificate reporting an amount of deductions and losses less than the amount reported on the superseded certificate. Under the principles of section 6655 (as applied through § 1.1446-3), PRS is required to have paid 50-percent of the annualized 1446 tax due with respect to NRA on or before the due date of the second installment period (section 6655(e)(2)(B) percentage for the second installment period). Under paragraph (c)(2)(ii)(B) of this section, because NRA's updated certificate is valid for the second installment period, if PRS considers a certificate for that period it must consider the updated certificate. Under paragraph (c)(1)(i)(C) of this section, PRS can only consider $3,600 ($4,000 × .90) of NRA's updated effectively connected net operating loss. Assuming PRS considers NRA's updated certificate for the second installment period, PRS must have paid a total of $245 of 1446 tax with respect to the ECTI estimated to be allocable to NRA as of the second installment due date ($1,400 ($5,000 ECTI less $3,600 net operating loss deduction) × .35 (withholding tax rate) × .50 (section 6655(e)(2)(B) percentage for the second installment period)). After considering PRS's payment of 1446 tax for the first installment period, PRS is required to pay $201.25 for the second installment period ($245 less previous payment of $43.75). See § 1.1446-3(b)(2). Further, if PRS considers NRA's updated certificate for the second installment period, when PRS files Form 8813 it must attach the updated certificate along with PRS's computation of 1446 tax due with respect to NRA.
(v)Under paragraph
(d)of this section, PRS is not liable for the addition to the tax under section 6655 (as applied through § 1.1446-3) for the first installment period because PRS reasonably relied on NRA's certificate of losses for that period.
(vi)Assume that PRS's estimate of its ECTI allocable to NRA for the third and fourth installment periods is the same as for the first and second installment periods. Assume PRS may reasonably rely on NRA's updated certificate in calculating its payment of 1446 tax for the third and fourth installment periods. The third installment of 1446 tax would be $122.50 (($5,000 − $3,600) × .35 × .75 = $36 7.50 − $245 (total previous payments)). The fourth installment of 1446 tax would be $122.50 (($5,000 − $3,600) × .35 × 1.00 = $490 − $367.50 (total previous payments)). See § 1.1446-3(b)(2). PRS must attach to each Form 8813 a computation of the 1446 tax due with respect to NRA that takes into account the amount of effectively connected net operating loss reported on NRA's updated certificate.
(vii)Because NRA's certified net operating loss has not changed for the third and fourth installments, in lieu of attaching NRA's certificate, PRS may attach a statement containing NRA's name, TIN, and the certified net operating loss amount. However, PRS must attach NRA's certificate and a computation of the 1446 tax due with respect to NRA that takes into account NRA's certified net operating loss to the Form 8805 filed with respect to NRA. See paragraph (d)(3) of this section. Example 5. *IRS determines in subsequent taxable year that partner's certificate is defective because partner failed to timely file a U.S. income tax return.* NRA and B form a partnership
(PRS)in year 1 to conduct a trade or business in the United States. NRA and B provide PRS appropriate documentation under § 1.1446-1 to establish their status for purposes of section 1446. In year 4, NRA timely submits a certificate under this section (using Form 8804-C) to be considered by PRS for its first installment period. The certificate reports that NRA reasonably expects to have an effectively connected net operating loss of $5,000 available to offset its allocable share of ECTI from PRS in year 4. Further, the certificate contains all of the necessary representations required under this section. PRS estimates for each installment period that NRA's allocable share of ECTI will be $5,000 for the taxable year. PRS's actual operating results for the year result in $5,000 of ECTI allocable to NRA.
(i)PRS reasonably relies on (within the meaning of paragraph (a)(2) of this section) NRA's certificate when computing each installment payment during year 4 and the 1446 tax due on Form 8804 and appropriately considers the limitation in paragraph (c)(1)(i)(C) of this section. As a result, PRS paid $175 of 1446 tax on behalf of NRA for the taxable year ($5,000 of ECTI less $4,500 net operating loss deduction × .35 applicable percentage). As required under paragraph
(d)of this section, PRS attached the certificate to the Form 8813 for the first installment period and the Form 8805 for year 4. Because NRA did not submit an updated certificate to PRS in year 4, PRS attached to the Forms 8813 for the second, third and fourth installment periods a statement containing NRA's name, TIN, and the certified net operating loss as well as the computation of 1446 tax due with respect to NRA reflecting the amount of net operating loss considered.
(ii)In year 5, NRA timely submits to PRS a certificate under this section to be considered for the first installment period. The certificate represents that NRA reasonably expects to have an effectively connected net operating loss of $5,000 available to offset its allocable share of ECTI from PRS in year 5. For the first installment period, PRS estimates that NRA's allocable share of partnership ECTI is $5,000. PRS reasonably relies on the certificate for the first installment period and determines that it is required to make a 1446 tax installment payment of $43.75 ($5,000 allocable ECTI less $4,500 (certified net operating loss as limited under paragraph (c)(1)(i)(C) of this section) × .35 (1446 tax applicable percentage) × .25 (section 6655(e)(2)(B) percentage for the first installment period)). See § 1.1446-3(b)(2). PRS makes the installment payment with the Form 8813 filed for the first installment period, and complies with paragraph (d)(3) of this section by attaching NRA's certificate and the computation of 1446 tax due with respect to NRA to the Form 8813.
(iii)The IRS provides written notification to PRS on June 1, year 5, (pursuant to paragraph (c)(3) of this section) that the certificate received from NRA in year 4 is defective because NRA failed to file a qualifying U.S. income tax return (within the meaning of paragraph (b)(2)(iii) of this section) for one of the preceding taxable years as required under paragraph (b)(1) of this section. The notice further states that PRS is not to rely on any certificate received from NRA in year 5.
(iv)Under paragraph (d)(2)(ii) of this section, because the certificate submitted by NRA in year was determined to be defective for a reason other than the amount or character of the certified deductions and losses, under section 1461 PRS is fully liable for the 1446 tax due with respect to NRA's allocable share of ECTI year 4 without regard to the certificate. The total 1446 tax due for year 4 without regard to the certificate is $1,750 ($5,000 ECTI × .35) and PRS paid $175 of 1446 tax in year 4. Therefore, PRS owes $1,575 of 1446 tax. However, PRS may be deemed to have paid the outstanding 1446 tax due if NRA paid all of its U.S. tax due in year 4. See § 1.1446-3(e).
(v)However, because PRS did not have actual knowledge or reason to know that the certificate NRA submitted in year 4 was defective, PRS reasonably relied on the certificate for purposes of paragraph (d)(2) of this section. Therefore, PRS is not liable for an addition to the tax with respect to its underpayment of 1446 tax under the principles of section 6655 (as applied through § 1.1446-3) for any installment period in year 4.
(vi)However, PRS is generally liable for interest under section 6601 and for the failure to pay addition to tax under section 6651(a)(2) on the $1,575 of 1446 tax due for year 4 for the period from April 15, year 5 (last date prescribed for payment of 1446 tax) to the date PRS pays the 1446 tax or is deemed to have paid the 1446 tax under § 1.1446-3(e).
(vii)With respect to the year 5, PRS reasonably relied on NRA's certificate when computing its first installment payment (due on April 15, year 5). Therefore, in accordance with paragraph (d)(2)(i) of this section, PRS will not be liable for an addition to the tax under the principles of section 6655 (as applied through § 1.1446-3) for the first installment period. However, because the IRS provided written notification to PRS on June 1, year 5, to disregard any certificate received from NRA for year 5, PRS may not rely on any certificate received from NRA certificate (or any new certificate provided by NRA) when it computes its second installment payment in year 5. PRS is not permitted to consider any certificate submitted by NRA until the IRS provides written notification to PRS revoking or modifying the original notice. PRS's second installment payment in year 5 must include the additional amount of 1446 tax it would have paid for the first installment period without regard to the certificate received from NRA. Example 6. *IRS determines in subsequent taxable year that partner's certificate is defective because partner's actual losses are less than amount certified and considered by the partnership.* Assume the same facts as in *Example 5,* except that the IRS determines that NRA's certificate submitted in year 4 is defective because the actual effectively connected net operating loss available to NRA for year 4 was $1,000 rather than the $5,000 certified.
(i)Under paragraph (d)(2)(ii) of this section, PRS is not relieved from its liability for 1446 tax under section 1461 when it relies on a certificate of losses from a foreign partner that is later determined to be defective. However, when the IRS determines that a partner's certificate is defective because of the amount of the certified deductions and losses, the partnership is liable for the 1446 tax, interest, additions to tax, and penalties to the extent the amount of certified deductions and losses taken into account when computing 1446 tax (or, unless there was reasonable reliance on the certificate, any installment of such tax) is greater than the actual amount of available deductions and losses. Here, PRS considered the certified deductions and losses in the amount of $4,500. The IRS subsequently determined that NRA only had $1,000 of actual losses, only $900 of which were permitted to be considered under paragraph (c)(1)(i)(C) of this section. Accordingly, PRS is liable for the 1446 tax due with respect to the portion of the overstated losses that it considered when computing its 1446 tax. The remaining 1446 tax due for year 4 is $1,260 ($3,600 ($4,500 less $900) of excess losses considered × .35). However, PRS may be deemed to have paid the $1,260 of 1446 tax under § 1.1446-3(e) if NRA has paid all of NRA's U.S. income tax.
(ii)If PRS had considered only $900 (or a lesser amount)) of NRA's certified net operating loss when computing and paying its 1446 tax during year 4 then, under paragraph (d)(2)(iii) of this section, PRS would not be liable for 1446 tax because it did not consider a net operating loss greater than the amount actually available to NRA. *Example 7.* *Partner with different taxable year than partnership.* PRS partnership has two equal partners, FC, a foreign corporation, and DC, a domestic corporation. PRS conducts a trade or business in the United States and generates effectively connected income. FC maintains a June 30 fiscal taxable year end, while DC and PRS maintain a calendar taxable year end. FC and DC provide a valid Form W-8BEN and Form W-9, respectively, to PRS. FC and DC are the only persons that have ever been partners in PRS. For its year 1 through year 3 taxable years, PRS issued Forms 1065 (Schedule K-1) reporting in the aggregate $100 of net loss to each partner. For its year 4 taxable year, PRS issued Forms 1065 (Schedule K-1) to its partners reporting $150 of loss to each partner. All of the losses reported on the Forms 1065 (Schedule K-1) are effectively connected to PRS's and FC's trade or business in the United States.
(i)Assume that FC submits a valid certificate under this section certifying losses to the partnership for the partnership's year 5 taxable year. Further, assume that FC's only source of effectively connected income, gain, deduction, or loss is the activity of PRS.
(ii)For PRS's first installment period in year 5, FC may only certify deductions and losses under this section in the amount of $100 (the losses as reported on the Forms 1065 (Schedule K-1) issued for PRS's year 1 through 3 taxable years). Under section 706, the taxable income of a partner shall include the income, gain, loss, deduction, or credit of the partnership for the partnership taxable year ending within or with the taxable year of the partner. PRS's year 4 calendar taxable year ends during FC's fiscal taxable year ending June 30, year 5. Therefore, under paragraph (c)(1) of this section, as of April 15, year 5 (the last date FC may submit its first certificate under paragraph
(c)of this section to have it considered for PRS's first installment due date of April 15, year 5), FC's allocable share of the PRS losses for years 1 through 3 are the only losses that FC can represent have been or will be reported on an FC U.S. income tax return filed for a taxable year ending prior to such installment due date.
(iii)The result in paragraph
(ii)of this *Example 7* is the same for the year 5 second installment period, the due date of which is June 15, year 5.
(iv)FC may submit an updated certificate under this section after June 30, year 5, which includes the $150 loss for year 4. PRS may consider such an updated certificate for its third installment period (due date September 15, year 5), provided the updated certificate is received by the due date for such installment in accordance with paragraph
(c)of this section. *Example 8.* *Failure to provide status update with respect to prior year unfiled returns.* FC, a foreign corporation, and DC, a domestic corporation, form a partnership
(PRS)to conduct a trade or business in the United States. FC and DC provide PRS appropriate documentation under § 1.1446-1 to establish their status for purposes of section 1446. FC and DC are equal partners in PRS, and all partnership items are allocated equally between FC and DC.
(i)In the current taxable year FC submits a certificate under this section using Form 8804-C prior to PRS's first installment due date. FC represents that it has filed or will file a qualifying U.S. income tax return (within the meaning of paragraph (b)(2)(iii) of this section) in each of the preceding three taxable years. FC specifies that it has not filed its U.S. income tax return for the immediately preceding taxable year. FC also represents that it will timely file its U.S. income tax return for the partnership taxable year during which the certificate is considered (and will timely pay all tax due with such return). Assume all other requirements under paragraph
(c)of this section are met for FC's certificate to be valid.
(ii)Provided that PRS does not possess actual knowledge or reason to know that FC's certificate is defective under paragraph (a)(2) of this section, PRS may reasonably rely on FC's certificate for its first, second, and third installment payments.
(iii)If FC does not submit to PRS either an updated certificate or a status update as required by paragraph (c)(2)(ii)(B)( *1* ) of this section by December 15th (PRS's final installment due date), PRS must disregard FC's certificate when computing its fourth installment payment of 1446 tax and when completing its Form 8804 for the taxable year. PRS's payment of 1446 tax for its fourth installment period must include the additional amount of 1446 tax it would have paid in the first, second and third installment periods had it not considered FC's certificate. Further, even if the status update is provided by December 15th, PRS may only rely on the certificate if the status update does not contradict the original certificate and such update indicates that the immediately preceding year's return will be timely filed. Finally, even if the status update is provided by December 15th, FC must also submit an updated certificate to the partnership in accordance with paragraph
(c)of this section within 10 days of the date FC timely files its U.S. income tax return for the preceding taxable year. *Example 9.* *Partnership consideration of certified deductions and losses or de minimis certificate.* For purposes of this example assume paragraph (c)(1)(ii) of this section may apply. On January 1, year 4, NRA and B form a partnership
(PRS)to conduct a trade or business in the United States. NRA and B are equal partners in PRS and all partnership items are shared equally. NRA and B provide PRS appropriate documentation under § 1.1446-1 to establish their status for purposes of section 1446. During years 1 through 3, NRA's only activity generating effectively connected items was an interest in partnership XYZ. XYZ allocated NRA a loss for all three years. NRA filed qualifying U.S. income tax returns (within the meaning of paragraph (b)(2)(iii) of this section) reporting its allocable share of losses from XYZ in years 1 through 3. The XYZ partnership dissolved on December 31, year 3.
(i)In year 4, NRA's only activity giving rise to effectively connected income, gain, deduction, or loss is its interest in PRS. NRA submits to PRS a valid certificate (using Form 8804-C) certifying under paragraph (c)(1)(i) its effectively connected net operating losses from years 1 through 3 and under (c)(1)(ii) of this section that its only activity giving rise to effectively connected income, gain, deduction, or loss for the PRS taxable year that ends with or within its taxable year is (and will be) its investment in PRS.
(ii)During year 4, PRS allocates ECTI to NRA. If the 1446 tax otherwise due on the annualized amount allocated to NRA is less than $1,000, determined without regard to any deductions and losses certified by NRA under paragraph (c)(1)(i) of this section, PRS may consider the certificate received from NRA under paragraph (c)(1)(ii) of this section and not pay 1446 tax (or any installment of such tax) with respect to NRA. Alternatively, PRS may consider the deductions and losses certified by NRA under paragraph (c)(1)(i) of this section.
(iii)Regardless of whether PRS considers NRA's certification under paragraph (c)(1)(i) or (c)(1)(ii) of this section in computing its 1446 tax due with respect to NRA, PRS must file Form 8813 for all installment periods as well as a Form 8805 for NRA with its Form 8804. If PRS considers NRA's certification under paragraph (c)(1)(i) or (c)(1)(ii) of this section, PRS must attach to each Form 8813, as well as to the Form 8805, a computation of the 1446 tax with respect to NRA that takes into account its consideration of NRA's certificate. In addition, PRS must attach NRA's certificate to the Form 8813 for the first installment period it considers the certificate, as well as to the Form 8805. For all subsequent installment periods, PRS may attach a statement containing NRA's name, and TIN. If PRS is relying on NRA's certified losses under paragraph (c)(1)(i) of this section, the statement must indicate the amount of losses and deductions NRA certified. If PRS is relying on NRA's certification under paragraph (c)(ii) of this section, the statement must indicate that it is relying on NRA meeting the requirements under paragraph (c)(1)(ii) of this section and the 1446 tax on the annualized amount allocated to NRA is less than $1,000. See paragraph (d)(3)(i) of this section. *Example 10.* *Application of transition rule.* NRA and B form a partnership
(PRS)on January 1, 2004, to conduct a trade or business in the United States. NRA and B are equal partners in PRS and all partnership items are shared equally. NRA and B provide PRS appropriate documentation under § 1.1446-1 to establish their status for purposes of section 1446. For its 2004 through 2007 tax years, PRS issued Forms 1065 (Schedule K-1) to NRA and B reporting a $1,000 net loss from its U.S. trade or business to each partner for each year (for an aggregate loss of $4,000 per partner). During the 2004 through 2007 tax years, NRA's only activity generating effectively connected items was its investment in PRS.
(i)On February 10, 2008, NRA submitted a certificate to PRS, reporting its aggregate $4,000 effectively connected loss to PRS, that met the requirements of § 1.1446-6T(c) (See 26 CFR Part 1, revised as of April 1, 2007), as in effect before January 1, 2008. The certificate stated that NRA had timely filed its U.S. income tax returns for the 2004, 2005 and 2006 tax years, and that it would timely file a U.S. income tax return for its 2007 tax year. For the first and second installments period in 2008, PRS estimates that it will earn ECTI of $10,000.
(ii)Because the certificate submitted by NRA to PRS on February 10, 2008, met the requirements of § 1.1446-6T (See 26 CFR Part 1, revised as of April 1, 2007), as in effect before January 1, 2008, PRS may consider such certificate when computing its 1446 tax due for the first and second installment period even if the certificate does not meet all the requirements of paragraph
(c)of this section.
(iii)NRA timely files its U.S. income tax return for the 2007 tax year on July 24, 2008. In accordance with paragraph (c)(2)(ii)(B)( *1* ) of this section, within 10 days of filing such return NRA prepares an updated certificate to be submitted to PRS certifying that it reasonably expects to have only $3,500 of losses available to reduce its allocable share of ECTI from PRS. Because the updated certificate will be submitted after July 28, 2008, to be valid the updated certificate must meet the requirements of paragraph
(c)this section.
(f)*Effective/Applicability date.* Except as otherwise provided in this paragraph (f), the rules of this section are applicable for partnership taxable years beginning after December 31, 2007. The rules of paragraphs (b)(3)(i)(B) through
(D)shall apply to partnership taxable years beginning after July 28, 2008.
(g)*Transition rule.* A certificate that met the requirements of § 1.1446-6T(c) (See 26 CFR Part 1, revised as of April 1, 2007), as in effect before January 1, 2008, submitted on or before July 28, 2008 by a partner that met the requirements of § 1.1446-6T(b) (See 26 CFR Part 1, revised as of April 1, 2007), as in effect before January 1, 2008, shall not be considered defective because it does not meet the requirements of this section. However, any certificate (including any updated certificates and status updates) submitted, or required to be submitted, under paragraph
(c)of this section after July 28, 2008, must meet the requirements of this section. See paragraph (e)(2) *Example 10* of this section. **Par. 8.** In § 1.1446-7, the section heading is revised and two new sentences are added at the end of the paragraph to read as follows: § 1.1446-7 Effective/Applicability date. * * * The revisions to §§ 1.1446-3(b)(2), 1.1446-3(b)(3)(i)(A) and 1.1446-5(c)(2) contained in the final regulations published in 2008 apply to partnership taxable years beginning after December 31, 2007. See § 1.1446-6(f) and
(g)for the Effective/Applicability date and Transition rule for § 1.1446-6. **Par. 9.** In § 1.1464-1, paragraph
(a)is amended by adding one sentence at the end of the paragraph and new paragraph
(c)is added to read as follows: § 1.1464-1 Refunds or credits.
(a)* * * With respect to section 1446, this section shall only apply to a publicly traded partnership described in § 1.1446-4.
(c)*Effective/Applicability date.* The last two sentences in paragraph
(a)of this section shall apply to partnership taxable years beginning after *April 29, 2008.* **Par. 10.** In § 1.6071-1, paragraph (c)(15) is revised and paragraph
(d)is added to read as follows: § 1.6071-1 Time for filing returns and other documents.
(c)* * *
(15)For provisions relating to the time for filing an annual information return on Form 1042-S, “Foreign Person's U.S. Source Income subject to Withholding,” or Form 8805, “Foreign Partner's Information Statement of Section 1446 Withholding Tax,” for any tax withheld under chapter 3 of the Internal Revenue Code (relating to withholding of tax on nonresident aliens and foreign corporations and tax-free covenant bonds), see § 1.1461-1(c) and § 1.1446-3(d).
(d)*Effective/Applicability date.* The references to Form 8805 and § 1.1446-3(d) in paragraph (c)(15) of this section shall apply to partnership taxable years beginning after *April 29, 2008.* **Par. 11.** In § 1.6091-1, paragraph (b)(17) and paragraph
(c)are added to read as follows: § 1.6091-1 Place for filing returns or other documents.
(b)* * *
(17)For the place for filing information returns on Form 8805, “Foreign Partner's Information Statement of Section 1446 Withholding Tax,” with respect to certain amounts paid on behalf of foreign partners, see the instructions to the form.
(c)*Effective/Applicability date.* Paragraph (b)(17) of this section shall apply to partnership taxable years beginning after *April 29, 2008.* **Par. 12.** In § 1.6151-1, paragraph (d)(2) is amended by adding one sentence at the end of the paragraph and paragraph
(e)is added to read as follows: § 1.6151-1 Time and place for paying tax shown on returns.
(d)* * *
(2)* * * With respect to section 1446, the previous sentence shall apply only to a publicly traded partnership described in § 1.1446-4.
(e)*Effective/Applicability date.* Paragraph (d)(2) of this section shall apply to publicly traded partnerships described in § 1.1446-4 for partnership taxable years taxable years beginning after *April 29, 2008.* **Par. 13.** In § 1.6302-2, paragraphs (a)(1)(i), (a)(2) and
(g)are revised to read as follows: § 1.6302-2 Use of Government depositaries for payment of tax withheld on nonresident aliens and foreign corporations.
(a)* * *
(1)* * *
(i)*Monthly deposits.* Except as provided in paragraphs (a)(1)(ii) and
(iv)of this section, every withholding agent who, pursuant to chapter 3 of the Internal Revenue Code, has accumulated at the close of any calendar month beginning on or after January 1, 1973, an aggregate amount of undeposited taxes of $200 or more shall deposit such aggregate amount with an authorized financial institution (see paragraph (b)(1)(ii) of this section) within 15 days after the close of such calendar month. However, the preceding sentence shall not apply if the withholding agent has made a deposit of taxes pursuant to paragraph (a)(1)(ii) of this section with respect to a quarter monthly period which occurred during such month. With respect to section 1446, this section shall only apply to a publicly traded partnership described in § 1.1446-4.
(2)*Cross reference.* For rules relating to the adjustment of deposits, see §§ 1.1461-2(b) and 1.6414-1. For rules requiring payment of any undeposited tax, see § 1.1461-1.
(g)*Effective/Applicability date.* Except as otherwise provided, this section shall apply to tax required to be withheld under chapter 3 of the Internal Revenue Code after 1966. The last sentence of paragraph (a)(1)(i) of this section shall apply to partnership taxable years beginning after *April 29, 2008.* **Par. 14.** Section 1.6414-1 is amended by: 1. Adding two sentences at the end of paragraph (a)(2). 2. Revising the third sentence of paragraph (b). 3. Adding paragraph (d). The additions and revision read as follows: § 1.6414-1 Credit or refund of tax withheld on nonresident aliens and foreign corporations.
(a)* * *
(2)* * * With respect to the payment of withholding tax under section 1446, this section shall only apply to a publicly traded partnership described in § 1.1446-4. See § 1.1446-3(d)(2)(iv) for rules regarding refunds to a withholding agent under section 1446.
(b)* * * The amount claimed as a credit may be applied, to the extent it has not been applied under § 1.1461-2(b), by the withholding agent to reduce the amount of a payment or deposit of tax required by § 1.1461-1 or § 1.6302-2(a) for any payment period occurring in the calendar year following the calendar year of overwithholding. * * *
(d)*Effective/Applicability date.* The last two sentences of paragraph
(a)of this section shall apply to partnership taxable years beginning after April 29, 2008. PART 301—PROCEDURE AND ADMINISTRATION **Par. 15.** The authority for 26 CFR part 301 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 16.** In § 301.6402-3, the second and third sentences of paragraph
(e)are revised and paragraph
(f)is added to read as follows: § 301.6402-3 Special rules applicable to income tax.
(e)* * * Also, if the overpayment of tax resulted from the withholding of tax at source under chapter 3 of the Internal Revenue Code, a copy of the Form 1042-S, “Foreign Person's U.S. Source Income subject to Withholding,” Form 8805, “Foreign Partner's Information Statement of Section 1446 Withholding Tax,” or other statement (see § 1.1446-3(d)(2) of this chapter) required to be provided to the beneficial owner or partner pursuant to § 1.1461-1(c)(1)(i) or § 1.1446-3(d) of this chapter must be attached to the return. For purposes of claiming a refund, the Form 1042-S, Form 8805, or other statement must include the taxpayer identification number of the beneficial owner or partner even if not otherwise required. * * *
(f)*Effective/Applicability date.* References in paragraph
(e)of this section to Form 8805 or other statements required under § 1.1446-3(d)(2) shall apply to partnership taxable years beginning after April 29, 2008. **Par. 17.** In § 301.6722-1, paragraph (d)(3) is revised and paragraph
(e)is added to read as follows: § 301.6722-1 Failure to furnish correct payee statements.
(d)* * *
(3)*Other items.* The term *payee statement* also includes any form, statement, or schedule required to be furnished to the recipient of any amount from which tax is required to be deducted and withheld under chapter 3 of the Internal Revenue Code (or from which tax would be required to be so deducted and withheld but for an exemption under the Internal Revenue Code or any treaty obligation of the United States) (generally the recipient copy of Form 1042-S, “Foreign Person's U.S. Source Income subject to Withholding,” or Form 8805, “Foreign Partner's Information Statement of Section 1446 Withholding Tax.”)
(e)*Effective/Applicability date.* The reference in paragraph (d)(3) of this section to Form 8805 shall apply to partnership taxable years beginning after *April 29, 2008* . PART 602—OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT **Par. 18.** The authority citation for part 602 continues to read as follows: Authority: 26 U.S.C. 7805 * * * **Par. 19.** In § 602.101, paragraph
(b)is amended by removing the entry for § 1.1446-6T from the table, adding an entry for § 1.1446-6, and revising the entries to the table to read as follows: § 602.101 OMB Control numbers.
(b)* * * CFR part or section where identified and described Current OMB control No. * * * * * 1.1446-1 1545-1934 1.1446-3 1545-1934 1.1446-4 1545-1934 1.1446-5 1545-1934 1.1446-6 1545-1934 * * * * * Linda E. Stiff, Deputy Commissioner for Services and Enforcement. Approved: April 23, 2008 Eric Solomon, Assistant Secretary of the Treasury. [FR Doc. E8-9356 Filed 4-28-08; 8:45 am] BILLING CODE 4830-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2004-WI-0002;FRL-8557-6] Approval and Promulgation of Air Quality Implementation Plans; Wisconsin; Redesignation of the Forest County Potawatomi Community Reservation to a PSD Class I Area AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: In this final action, EPA is approving the request by the Forest County Potawatomi Community's (FCP Community) Tribal Council to redesignate certain portions of the FCP Community Reservation as a non-Federal Class I area under the Clean Air Act (Act or CAA) program for the Prevention of Significant Deterioration
(PSD)of air quality. These regulations are designed to preserve the air quality in national parks and other areas that are meeting the National Ambient Air Quality Standards (NAAQS). The Class I designation will result in lowering the allowable increases in ambient concentrations of particulate matter, sulfur dioxide, and nitrogen dioxide on the Reservation. DATES: This final rule is effective on May 29, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2004-WI-0002. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507. This Facility is open from 8:30 a.m. to 4:30 p.m. Central Standard Time, Monday through Friday, excluding legal holidays. We recommend that you telephone Constantine Blathras at 312-886-0671 before visiting Region 5's office. Hard copies of these docket materials are also available in the EPA Headquarters Library, Room Number 3334 in the EPA West Building, located at 1301 Constitution Ave., NW, Washington, DC. The EPA/DC Public Reading Room hours of operation will be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744. FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507; telephone number: 312-886-0671; fax number: 312-886-5824; e-mail address: *blathras.constantine@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. I. General Information A. Does This Action Apply to Me? This action will apply to applicants to the PSD construction permit program on Class I trust lands of the FCP Community. B. Where Can I Obtain Additional Information? In addition to being available in the docket, an electronic copy of this final rule is also available on the World Wide Web. Following signature by the EPA Administrator, a copy of this final rule will be posted on the EPA's New Source Review
(NSR)Web site, under Regulations & Standards, at *http://www.epa.gov/nsr/actions.html* . C. How Is This Action Organized? The information presented in this action is organized as follows: I. General Information A. Does This Action Apply to Me? B. Where Can I Obtain Additional Information? C. How is this Action Organized? II. Background A. The Clean Air Act Prevention of Significant Deterioration
(PSD)Program and Class I Area Redesignations B. The Forest County Potawatomi Community Redesignation Request III. Overview of This Final Action A. What We Proposed B. Final Action and Differences From Proposal IV. Basis for Final Action A. Class I Redesignation Requirements 1. EPA's Interpretation of Section 164 of the Clean Air Act B. Lands Suitable for Redesignation C. EPA's Role in Evaluating Class I Redesignations D. Impact of Dispute Resolution on Redesignation E. Appropriate Mechanism for Codifying Class I Area 1. Role of Federal Implementation Plans
(FIP)2. Contents of Implementation Plan F. Air Program Implementation in Indian Country/Role of Tribes in Protecting Air Quality G. Air Quality Related Values (AQRVs) of Redesignated Lands H. Impact of Class I Redesignation on Minor Sources V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1966 (SBREFA), 5 U.S.C. 601 et seq. 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 & Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act VII. Statutory Authority II. Background A. The Clean Air Act Prevention of Significant Deterioration
(PSD)Program and Class I Area Redesignations The CAA provides a comprehensive structure for “protect[ing] and enhanc[ing] the quality of the Nation's air resources[.]” *See* section 101(b) of the CAA. The basis of the CAA's regulatory structure is the NAAQS, which specify the maximum permissible concentrations of certain pollutants in the ambient air. *See* section 108 and 109 of the CAA. Furthermore, Part C of Title I of the CAA provides for the prevention of significant deterioration of air quality. The PSD program sets forth procedures for the preconstruction review and permitting of new and modified major stationary sources of air pollution locating in areas meeting the NAAQS, i.e., “attainment” areas, or in areas for which there is insufficient information to classify an area as either attainment or nonattainment, i.e., “unclassifiable” areas. These areas are referred to as “PSD areas.” *See* section 165(a) of the CAA. “Major stationary sources” are large industrial sources which emit or have the potential to emit 250 tons per year
(tpy)or more of a regulated air pollutant (100 tpy or more if the source falls in one of 28 specified categories). *See* 40 Code of Federal Regulations
(CFR)section 52.21(b). The applicability of the PSD program to a particular source must be determined in advance of construction, and it is pollutant specific. To obtain a PSD permit, a major stationary source must install the “best available control technology”
(BACT)to control emissions of regulated pollutants emitted in significant amounts. *See* section 165(a)(4) and section 169(3) of the CAA; 40 CFR 52.21(j). PSD permits also require the source to demonstrate that it will not contribute to a violation of the NAAQS or applicable PSD increments (the maximum allowable air quality deterioration allowed in a PSD area). *See* section 165(a)(3). The CAA provides three basic classifications for PSD areas: Class I, II and III. For each classification, the PSD regulations establish the incremental amount of air quality deterioration allowed. However and in all cases, the NAAQS set the maximum allowable concentration levels of certain pollutants that may not be exceeded in a PSD area, irrespective of any increment. Increments have been established for three pollutants—Particulate Matter (PM <sup>10</sup> ), Sulfur Dioxide (SO <sup>2</sup> ) and Nitrogen Dioxide (NO <sup>2</sup> )—and for a variety of averaging periods, which correspond to the averaging periods for the NAAQS for those pollutants. *See* 40 CFR 52.21(c). Class I areas include national parks greater than 6,000 acres in size, national wilderness areas greater than 5,000 acres in size and other natural areas of special concern; the smallest increments are specified for those areas. In addition, when Congress enacted the PSD program in 1977, it provided that these areas may not be redesignated to another classification. *See* section 162(a) of the CAA. Class II applies to areas in which pollutant increases accompanying moderate growth are allowed. Under the 1977 amendments to the CAA, all areas, other than the mandatory Federal Class I areas were initially designated as Class II PSD areas. However, States and Tribes have the authority to redesignate Class II areas to Class I to provide additional air quality protection and some Tribes have done so. 1 Class III applies to those areas in which more air quality deterioration is considered acceptable. States and Tribes have the authority also to redesignate Class II areas to Class III to promote development, but to date; none have chosen to do so. 1 These are the Northern Cheyenne Reservation, the Flathead Indian Reservation, the Fort Peck Indian Reservation, and the Spokane Indian Reservation. *See* 40 CFR 52.1382(c), 52.2497(c), and 52.144(c). The CAA directs the Secretary of the Interior, or other appropriate Federal land manager, to review other Federal lands and recommend for redesignation to Class I any appropriate areas “where air quality related values (AQRVs) are important attributes of the area.” *See* section 164(d) of the CAA. The Act does not define AQRVs nor identify specific AQRVs other than visibility ( *See* section 165(d)(2)(B) of the Act), but in the legislative history to the Act, AQRVs are described as follows: The term “air quality related values” of Federal lands designated as Class I includes the fundamental purposes for which such lands have been established and preserved by the Congress and the responsible Federal agency. For example, under the 1916 Organic Act to establish the National Park Service (16 U.S.C. 1), the purpose of such national park lands “is to conserve the scenery and the natural historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” Nevertheless, Class I status is not reserved for special Federal areas alone. Section 164 of the CAA provides to States and Indian governing bodies the ultimate authority to reclassify any lands within their borders as Class I. The CAA specifies that “a State may redesignate such areas as it deems appropriate as Class I areas.” *See* section 164(a) of the CAA. Tribes have similar authority to redesignate “lands within the exterior boundaries of reservations.” The procedural requirements for a Class I redesignation by a Tribe are set out in section 164(c) of the CAA and are further defined in the implementing regulations at 40 CFR 52.21(g)(4). These provisions explain the steps a Tribe needs to follow to request redesignation of reservation lands. The EPA Administrator may disapprove a redesignation request only if the Administrator finds that the proposal did not meet the procedural requirements or was inconsistent with the CAA. *See* 42 U.S.C. 164(b)(1)(C)(2). B. The Forest County Potawatomi Community Redesignation Request The FCP Community is a federally recognized Indian Tribe recognized by a congressional Act of June 23, 1913 (38 Stat. 102). The 1913 Act provided that 11,786 acres of non-contiguous land purchased by the Federal government would be set aside for the purpose of making allotments to the Wisconsin Potawatomi Indians (which included the FCP Community). While the lands were purchased for making allotments, no allotments were ever made due to changes in Federal allotment policies. Thus, title to the land remained with the United States until 1988, when Congress passed legislation to place the land in trust for the FCP Community, and to recognize explicitly all of these lands as belonging to the FCP Community. 2 The majority of the FCP Community's reservation lands are located in Forest County, Wisconsin, with the remaining acreage located in six neighboring townships. 2 On August 6, 1987, the Senate enacted Bill 1602 which declared that the trust lands that had been purchased pursuant to 38 Stat. 102 are “hereby declared to be the reservation of the Forest County Potawatomi Community of Wisconsin.” The FCP Community is downwind of key areas of industrial development. The reservation is located in the North Central Wisconsin Intra-State Air Quality Control Region #238. Land in the northern counties of this region is mostly forested. Lands south of Madison County in this region are mostly agricultural. Population and industry is concentrated southwest and west of the reservation, in the areas of Wausau, Stevens Point, Wisconsin Rapids, and Rhinelander. At present, Forest County itself has little industrial development, and the CAA's PSD minor source baseline date, which is the date on which the first complete application for a PSD permit is filed in a particular area, has not been triggered. Thus, at this time, there has been no PSD increment consumption in this area. On February 14, 1995, the FCP Community submitted its formal request for redesignation to EPA's Region 5 office. FCP Community's redesignation request proposes to reclassify as Class I those trust parcels of 80 acres or more located in Forest County. *See* Notice of Proposed Rulemaking, 60 FR 33779 (June 29, 1995). A list of these parcels can be found in the codification section of this notice labeled Subpart YY-Wisconsin, Forest County Potawatomi Reservation (b). The FCP Community explained its reasons for requesting redesignation as follows: “* * * the Forest County Potawatomi Community respects Mother Earth, and is aware of clean air as being a valuable resource that all living things depend upon to exist, and, * * * the Forest County Potawatomi Community wish to continue to strive towards self-determination, which will be strengthened by codes and land use plans that are compatible with their renewable resources and culture, and, * * * the present level of protection given to the Forest County Potawatomi air resource does not provide the level of protection the Tribe wishes to give their air, which they want to maintain as very pristine. * * *” *See Technical Report* at 2. The FCP Community reaffirmed these reasons in comments submitted to EPA on April 27, 2007, by citing the unique history of the reservation and FCP Community, the location of the headwaters of several wild and scenic rivers in the area, the importance of fish as a nutritional and recreational resource, the location of key wetlands in the area, the FCP Community's desire to protect and restore Devil's Lake, and the designation of portions of the area including the FCP Community Reservation and surrounding areas as eligible for listing in the National Historic Register as “Traditional Cultural Property.” A Traditional Cultural Property is one that meets the criteria for listing in the National Register and which has an “association with cultural practices or beliefs of a living community,” as rooted in that community's history and which is important because of its role in maintaining the continuing cultural identity of the community. 3 3 Jeff Crawford, Forest County Potawatomi Attorney General, “Comments Regarding U.S. Environmental Protection Agency's proposed Federal Implementation Plan under the Clean Air Act for Certain Trust Lands of the FCP Community if Designated as a PSD Class I Area” [hereafter FCP 2007 Comments], April 2007, at 3-10. Additionally, the FCP Community described the central importance of “purity” to its cultural and spiritual practices, where natural resources “must be drawn from spiritually pure natural environments. Concern about access to these resources and the ability of the environment to provide the pure resources needed to sustain Potawatomi culture occupies the thoughts and prayers of the community.” FCP Community member Jim Thunder, stated: “Today we are abusing our Mother Earth. Our air, water and soil are polluted. We are told not to eat fish out of certain streams and lakes. I pray to our creator that we look back so that we may see ahead. Let us examine our lives so that we are respectful to our fellow humans and to nature. Let us respect our children and, above all, let us live our lives in accordance with our beliefs.” 4 4 Id. at 10. Finally, the FCP Community also explains that clean air is important to the Tribal enterprises and economy of the Tribe, and to the northern Wisconsin area, where recreation and tourism are a primary component of the economic base and a key projected component of economic growth for the Tribe and for the region. 5 5 “Tourism in these seven counties [Forest, Oneida, Florence, Langlade, Marinette and Oconto] grew by 117% between 1994 and 2005 compared to 107% for Wisconsin as a whole [citation omitted]. In 2005 in these seven counties, the $715 million spent by tourists created some 18,005 equivalent full-time jobs and generated some $23.2 million in revenue for local governments through such means as property taxes, sales taxes, lodging taxes, and so forth [citation omitted].” Id. at 14. III. Overview of This Final Action EPA is taking final action on its evaluation of the FCP Community's Tribal Council request to redesignate certain portions of the FCP Reservation as a non-Federal Class I area under the CAA program for the prevention of significant deterioration of air quality. We have decided to approve this request. The Class I designation will result in lowering the allowable increases in ambient concentrations of PM, SO <sup>2</sup> , and NO <sup>X</sup> on the Reservation. A. What We Proposed On June 29, 1995, and July 10, 1997, EPA proposed to approve a request by the FCP Community Tribal Council to redesignate lands within the FCP Community Reservation in the State of Wisconsin to Class I under EPA's regulations for prevention of significant deterioration of air quality (60 FR 33779, 62 FR 37007). The Class I designation will result in lowering the allowable increases in ambient concentrations of PM, SO <sup>2</sup> , and NO <sup>X</sup> on certain of the FCP Community's lands. On December 18, 2006, EPA proposed that it would promulgate a Federal Implementation Plan
(FIP)if it approves FCP Community's request, with the FIP to be implemented by EPA unless or until it is replaced by a Tribal Implementation Plan (TIP). B. Final Action and Differences From Proposal In this final action, we are approving FCP's Community request to redesignate certain reservation lands to Class I status. EPA finds that the FCP Community has met the applicable procedural requirements and thus its redesignation request must be approved. However, we are amending, based on comments received, the language proposed in the December 18, 2006, rulemaking, which had stated in pertinent part the following modification to the FIP for the PSD program in Wisconsin:
(e)Regulations for the prevention of the significant deterioration of air quality. The provisions of § 52.21(b) through
(w)are hereby incorporated and made a part of the applicable State plan for the State of Wisconsin for sources wishing to locate in Indian country; and sources constructed under permits issued by EPA, except as specified in paragraph
(f)of this section.
(f)Forest County Potawatomi Community reservation lands 80 acres and over in size and located in Forest County are designated as a Class I area for the purposes of prevention of significant deterioration of air quality. The individual parcels listed below all consist of a description from the Fourth Principal Meridian. * * *
(8)Section 2 of T36N R13E* * *
(26)N 1/2 of Section 22 of T35N R16E* * *
(27)SE 1/4 of Section 22 of T35N R16E* * * First of all, the FCP Community noted that the draft language was not based on the current language for 40 CFR 52.2581, which provides:
(e)Regulations for the prevention of significant deterioration of air quality. The provisions of § 52.21 except paragraph (a)(1) are hereby incorporated and made a part of the applicable State plan for the State of Wisconsin for sources wishing to locate in Indian country; and sources constructed under permits issued by EPA. EPA agrees and for that reason the current language should be the starting point to any modification of this provision. Second, the FCP Community stated that EPA's proposed FIP language “creates ambiguity regarding whether the requirements of 40 CFR 52.21 apply to the FCP Community's Reservation.” 6 EPA intends that the requirements of 40 CFR 52.21 apply to the parcels redesignated as Class I, and has modified the proposed FIP language accordingly to remove the phrase “except as specified in paragraph
(f)of this section. The revised rulemaking text is as follows: 6 FCP Comment letter, 2007, at 31.
(e)Regulations for the prevention of significant deterioration of air quality. The provisions of § 52.21 except paragraph (a)(1) are hereby incorporated and made a part of the applicable State plan for the State of Wisconsin for sources wishing to locate in Indian country; and sources constructed under permits issued by EPA.
(f)Forest County Potawatomi Community Reservation.
(1)The provisions for prevention of significant deterioration of air quality at 40 CFR 52.21 are applicable to the Forest County Potawatomi Community Reservation, pursuant to § 52.21(a).
(2)In accordance with section 164 of the Clean Air Act and the provisions of 40 CFR 52.21(g), those parcels of the Forest County Potawatomi Community's land 80 acres and over in size which are located in Forest County are designated as a Class I area for the purposes of prevention of significant deterioration of air quality. For clarity, the individual parcels are listed in 40 CFR 52.2581(f)(2). Finally, the FCP Community has commented that the three parcels, numbers 8, 26, and 27 have been incorrectly identified either in the description of lands provided in the Tribe's letter of February 24, 1998, or in EPA's list of parcels proposed for redesignation published in the December 18, 2006, proposed rulemaking. These lands are, however, correctly identified on the December 13, 1994, S. Funk map provided by the Tribe with its redesignation request. This map was specifically reviewed by the Bureau of Indian Affairs, Minneapolis District office, which certified that the lands marked for proposed redesignation are lands held in trust for the Tribe. Letter from Robert Jaeger, Superintendent, Bureau of Indian Affairs to David Kee, Director, Region 5 Air and Radiation Division on April 16, 1998. This map has been available for public notice and comment during the pendancy of this rulemaking. Accordingly, EPA has corrected the legal description of parcel numbers 8, 26, and 27 in the list of lands redesignated to Class I pursuant to today's action. IV. Basis for Final Action A. Class I Redesignation Requirements EPA is taking this action in accordance with the requirements of section 164 of the CAA. In section 164 of the Act, Congress provides States and Tribes the ultimate authority to reclassify any lands within their borders as Class I based on the following statutory and regulatory requirements:
(1)At least one public hearing must be held in accordance with procedures established in 40 CFR 51.102. *See* 40 CFR 52.21(g)(2)(i).
(2)Other States, Indian Governing Bodies, and Federal Land Managers whose lands may be affected by the proposed redesignation must be notified at least 30 days prior to the public hearing. *See* 40 CFR 52.21(g)(2)(ii).
(3)At least 30 days prior to the Tribe's public hearing, a discussion of the reasons for the proposed redesignation including a satisfactory description and analysis of the health, environmental, economic, social and energy effects of the proposed redesignation must be prepared and made available for public inspection. *See* 40 CFR 52.21(g)(2)(iii).
(4)Prior to the issuance of the public notice for a proposed redesignation of an area that includes Federal lands, the Tribe must provide written notice to the appropriate Federal Land Manager and afford an adequate opportunity for the Federal Land Manager to confer with the Tribe and submit written comments and recommendations. *See* 40 CFR 52.21(g)(2)(iv).
(5)The proposal to redesignate has been made after consultation with the elected leadership of local and other substate general purpose governments in the area covered by the proposed redesignation. *See* 40 CFR 52.21(g)(2)(v).
(6)Prior to proposing the redesignation, the Indian Governing Body must consult with the State(s) in which the Reservation is located and that border the Reservation. *See* 40 CFR 52.21(g)(4)(ii).
(7)Following completion of the procedural steps and consultation, the Tribe submits to the Administrator a proposal to redesignate the area. *See* 40 CFR 52.21(g)(4). 1. EPA's Interpretation of Section 164 of the Clean Air Act In addition to reiterating the CAA section 164 requirements, the following discussion identifies the actions taken by the FCP Community to fulfill those requirements and clarifies our interpretation of the requirements in light of several comments we received. 1. At least one public hearing must be held in accordance with procedures established in 40 CFR 51.102. *See* 40 CFR 52.21(g)(2)(i). The regulations require that a public hearing on a proposed redesignation be conducted in accordance with 40 CFR 51.102, which requires the following: A minimum of 30 days notice, “prominent advertisement” regarding the hearing in the affected area, availability of plans; notification to the EPA Administrator, local air pollution authorities, and preparation of a record of the proceedings. *See* 40 CFR 51.102(a)-(f). The FCP Community held a public hearing on the proposed redesignation on September 29, 1994, at the Potawatomi Tribal Hall, in Crandon, Wisconsin. The FCP Community's redesignation request included a certification that the hearings were held in compliance with applicable notice requirements, including adequate notice to appropriate local, State and Federal entities, as well as public hearing requirements. A transcript of the hearing, notices (including copies of advertisements), letter invitations, copies of comments received, a transcript of the hearing, and response to comments was included in the FCP application for redesignation. Accordingly, EPA finds that the hearing held by the FCP Community was adequate. 2. Other States, Indian Governing Bodies, and Federal Land Managers whose lands may be affected by the proposed redesignation must be notified at least 30 days prior to the public hearing. See 40 CFR 52.21(g)(2)(ii). The FCP Community held its public hearing on September 29, 1994. Notices of the public hearing, as well as notification of the public comment period and copies of supporting documents, were sent to dozens of governmental entities and interest groups in a letter dated August 26, 1994. Entities noticed included EPA Region 5, the States of Wisconsin and Michigan 7 (even though the lands covered by the redesignation lie wholly within Forest County, Wisconsin), the Bureau of Indian Affairs, the U.S. Fish and Wildlife Service; nine Wisconsin Tribal governments; nineteen counties and townships; local planning commissions in Wausau, Eau Claire, and Green Bay, Wisconsin; and, many other organizations. The FCP Community also published notices of the September 29, 1994, public hearing in four local newspapers, which ran between August 29, 1994 and September 1, 1994. Representatives from many of these governmental entities and organizations provided comments at the hearing or in writing. The FCP Community responded to these and other comments received from private individuals and commercial entities in its February 1995 “Responses to Common Questions and Issues in Written Comments on the Proposed Forest County Potawatomi Community PSD Class I Area Redesignation,” *Technical Report* at Appendix A. For a copy of this document, please visit the public docket of this rulemaking. 7 EPA examined correspondence between the Tribe and the State of Michigan and confirmed that the State received timely notification of the public hearing. In light of the outreach, public notice, opportunity for comment, and information distributed by the FCP Community in preparation for making their request to EPA for redesignation, EPA finds that the FCP Community provided adequate opportunity for notice, comment, and consultation. 3. At least 30 days prior to the Tribe's public hearing, a discussion of the reasons for the proposed redesignation including a satisfactory description and analysis of the health, environmental, economic, social and energy effects of the proposed redesignation must be prepared and made available for public inspection. *See* 40 CFR 52.21(g)(2)(iii). Section 164(b)(1)(A) of the CAA requires that a State or Tribe prepare for public comment a “satisfactory description and analysis of the health, environmental, economic, social, and energy effects of the proposed redesignation.” However, neither the CAA nor EPA regulations define “satisfactory description and analysis,” as that term is used in CAA section 164(b) and 40 CFR 52.21(g)(2). In construing its meaning, EPA considered Congressional intent that EPA's review of a “description and analysis” be deferential. In addition, EPA considered the question: “Satisfactory to whom?” Many commenters argued that the Tribe's request should be denied because they were unsatisfied with the level of documentation in the Tribe's application regarding economic impacts and whether the Tribe had sufficiently demonstrated that Class I redesignation would not have an adverse economic impact on surrounding areas, be they local communities, adjacent states, or states across the nation. EPA disagrees. In enacting section 164(b), it is clear that Congress intended to entrust EPA with the authority to set a deferential standard for “satisfactory description and analysis.” Thus, EPA stated in its final rule on the Yavapai Apache Class I redesignation that: “[The use of the word “satisfactory”] in the statute and implementing regulations suggests a relatively low threshold. Congress did not dictate that the analysis be comprehensive or exhaustive. Further, the statutory language does not assign any specific weight to the consideration of health, environmental economic, social or energy effects, or suggest that one consideration should be given priority over another. * * * *See* “Arizona Redesignation of the Yavapai Apache Reservation to a PSD Class I Area,” 61 FR 56461-56464 (November 1, 1996). Therefore, there is no requirement that a State or Tribe conduct a balancing test of the costs and benefits of a redesignation request, nor that the various factors to be considered in its analysis need to be balanced against one another. EPA has taken the position that the fact that no weight or priority is assigned to any particular factor, taken together with the broad redesignation discretion conferred on States and Tribes, indicates that the Tribe does not have to justify or overcome a balancing test in its redesignation request or show that a proposed redesignation will have no impact on the surrounding community. Legal precedent clearly supports EPA's interpretation. In *Nance* v. *EPA,* 645 F.2d 701 (9th Cir. 1981), petitioners claimed that the Northern Cheyenne Tribe's analysis was inadequate in several respects. However, the Ninth circuit court rejected the claim that the Tribe was required to meet exacting analysis requirements and held that the Tribe had considered the factors identified in EPA's regulations. *Nance* v. *EPA,* 645 F.2d at 712. EPA's decision in this case was upheld under the far more exacting pre-1977 regulatory regime that expressly provided for an analysis that included consideration of growth anticipated, regional impacts, and social, environmental and economic effects as well as stricter EPA scrutiny of the analysis. Moreover, the court found that the Tribe's decision was supported and strengthened by the policy for maintaining clean air embodied in the CAA: [T]he Clean Air Act contains a strong presumption in favor of the maintenance of clean air, and the nature of a decision which simply requires that the air quality be maintained at a certain level prevents any exact prediction of its consequences. The Tribe has considered the factors enumerated in EPA regulations, and its choice in favor of the certainty of clean air is a choice supported by the preferences embodied in the Clean Air Act. *Nance* v. *EPA,* 645 F.2d at 712. In another case regarding the approval of a redesignation request, in this case for the Yavapai Apache Tribe ( *See Administrator, State of Arizona* v. *EPA,* 151 F.3d at 1211, 9th Cir. 1998, hereafter *Arizona* v. *EPA* ), the Ninth Circuit also deferred to EPA's conclusion that the existing statutory requirement of a “satisfactory description and analysis” is a relatively low threshold. The court explained that the 1977 CAA amendments to the PSD provisions, which are still in the statute, changed previous law by eliminating EPA's previous authority to override a classification by a local government on the basis that the local government did not properly weigh energy, environment, and other factors. *Arizona* v. *EPA* at 151 F.3d at 1211 (citing legislative history). Moreover, EPA's role in reviewing redesignation requests is so limited it cannot disapprove a request unless it finds that the redesignation “does not meet the procedural requirements” of the Act, CAA Section 164(b)(2); this statutory limitation provides no support for the commenters' suggestion that EPA has broad authority to review the quality of the “description and analysis” much less to disapprove a redesignation unless the description and analysis are “satisfactory.” For those reasons, EPA finds that the FCP Community met the statutory requirement to provide a “satisfactory description and analysis.” Nevertheless, many commenters argued that the Tribe's request should be denied because they were unsatisfied with the level of documentation in the Tribe's application regarding economic impacts and whether the Tribe had sufficiently demonstrated that Class I redesignation would not have an adverse economic impact on surrounding areas, be they local communities, adjacent states, or states across the nation. 8 8 FCP 2007 Comments, at 15. As discussed previously, neither the CAA nor its implementing regulations require a State or Tribe to assess the impact of a proposed redesignation on areas outside the lands proposed for redesignation, nor to demonstrate that a request for redesignation would not impact these areas. Nevertheless, the FCP Community's application for redesignation contained information to show that the Tribe had examined the existing economy of the region and analyzed the potential impact of Class I redesignation on the existing and future projected economic growth in the region, concluding that “The development of large industrial projects will very likely be effected [sic] more by economic viability, external market conditions, and other existing local environmental and land use restrictions than by the Class I redesignation.” 9 9 *Technical Report,* included in Application, at 56. Furthermore, supplemental information submitted by the FCP Community in June 1995, contained an additional analysis showing that the anticipated (at that time) PSD caliber sources planning to construct or expand, as well as projected area economic growth, would not be adversely impacted by the proposed Class I area. The analysis concluded that “ *Class I redesignation will not effect the operations of any existing industry* because the PSD program only effects the development of new air pollutant sources.” Therefore, the *Technical Report* concluded, “The redesignation will not result in the loss of any existing jobs, nor in the “downsizing” or closing of any existing businesses. It will only require major new development projects to analyze the effects of and control the emission of air pollutants, so that the existing air quality remains clean [emphasis in original].” 10 10 *Technical Report* at 55. Supplemental information submitted by the FCP Community in its 2007 comments on the proposed FIP provided additional information to show that economic development did not slow or decrease near Class I areas. Moreover, the Tribe prepared a *Technical Report* and released it for public comment in advance of its public hearing. This *Technical Report* examines the environmental, health, economic, social and energy effects of the proposed redesignation both on and off FCP Community reservation lands. The analysis includes a survey of present conditions and presents projected impacts of redesignation on health, employment, and natural resources, including the project impacts to aquatic, forest and wetlands ecosystems; and to fish and wildlife populations. The FCP Community's *Technical Report* also provides a discussion of the projected effects of redesignating the FCP Community Reservation lands to Class I and the effects of remaining Class II. Additionally, although there is no statutory obligation to identify AQRVs prior to seeking redesignation, the FCP Community's *Technical Report* and a supplementary support document dated June 14, 1995, provide the FCP Community's analysis of potential impacts of the two AQRVs identified (mercury deposition and acid rain) in the context of the health, environmental, energy, economic, and social factors analysis, both for lands subject to the redesignation request, and those located outside the proposed area. The *Technical Report* notes in several instances that adverse impacts on AQRVs, which occur at concentrations lower than Class I increments, might pose an additional restriction on the sitting of large projects. In conclusion, upon review of the documentation submitted by the FCP Community, EPA finds that the FCP Community has fully met the requirement in CAA section 164(b)(1)(A) and 40 CFR 52.21(g)(2)(iii) to provide a “satisfactory description and analysis of the health, environmental, economic, social, and energy effects of the proposed redesignation.” 4. Prior to the issuance of the public notice for a proposed redesignation of an area that includes Federal lands, the Tribe must provide written notice to the appropriate Federal Land Manager
(FLM)and afford an adequate opportunity for the FLM to confer with the Tribe and submit written comments and recommendations. *See* 40 CFR 52.21(g)(2)(iv). In addition to consultation undertaken by the FCP Community with Federal, State, and local agencies, the FCP Community consulted directly with the Bureau of Indian Affairs
(BIA)regarding FLM responsibilities. After those consultations, the BIA informed the FCP Community of that Agency's support of the Class I redesignation request and that Agency's view that the Tribe would be the appropriate land manager for the lands subject to the redesignation request. 11 EPA finds, accordingly, that the Tribe has satisfied this requirement. 11 Letter from Acting Superintendent Robert C. Ford, Great Lakes Agency, Bureau of Indian Affairs, U.S. Department of Interior, to Al Milham, Chairman, February 15, 1994. 5. The proposal to redesignate has been made after consultation with the elected leadership of local and other substate general purpose governments in the area covered by the proposed redesignation. *See* 40 CFR 52.21)(g)(2)(v). The lands covered by the proposed redesignation lie wholly within Forest County, Wisconsin, and are comprised wholly of reservation lands held in federal trust. The CAA requires notice to governmental entities “in the area covered by the proposed redesignation.” *See* 52.21(g)(2)(v) (emphasis added). There is no requirement, however, for a finding on what areas may be affected by a proposed redesignation or notice to such governments in such areas. As discussed in Section IV.A.1-2, the FCP Community's application contains a list of dozens of federal, state and local governmental offices which were notified of the Tribe's intended action. Additionally, the FCP Community developed a fact sheet and held a consultation session with federal, state, and local governmental representatives to further explain and hear concerns regarding the proposed action, besides the required public hearing. Further, the FCP Community received numerous comments on its proposed action, to which it prepared a response to comments document. Thus, and even while the regulation does not provide a standard for “consultation,” EPA deems the actions of the FCP Community to have provided sufficient notice and opportunity for comment. 6. Prior to proposing the redesignation, the Indian Governing Body must consult with the State(s) in which the Reservation is located and that border the Reservation. *See* 40 CFR 52.21(g)(4)(ii). The FCP Community's reservation is located wholly within the State of Wisconsin. For that reason, the FCP Community included several Wisconsin offices and agencies in its notice on the proposed redesignation and public hearing, as discussed in section IV.A.1-2 above. Nevertheless, the FCP Community also provided notice of its intent to redesignate to several divisions of the Michigan Department of Environmental Quality, although the State of Michigan does not border the reservation. Both Wisconsin and Michigan provided comments on the proposed redesignation, to which the Tribe responded in its response to comments document. Thus, EPA finds that the FCP Community's consultation efforts comply with the requirement to consult with States. 7. Following completion of the procedural requirements, the Tribe submits to the Administrator a proposal to redesignate the area. *See* 40 CFR 52.21(g)(4). On December 4, 1993, and by majority vote, the FCP Community General Council and the tribal governing body of the FCP Community passed a resolution to request the Administrator to redesignate the FCP Community Reservation and on February 10, 1995, the FCP Community General Council passed a resolution to submit its completed redesignation request package to EPA. The FCP Community submitted its formal request for redesignation to EPA's Region 5 office on February 14, 1995. EPA reviewed the FCP Community's request and made a preliminary determination that the request met the applicable procedural requirements of 40 CFR 52.21(g)(4). After making this preliminary determination, EPA published a notice of proposed rulemaking in the **Federal Register** proposing to approve the request and announced a 120-day public comment period on the issue of whether the Tribe had met the procedural requirements. *See* Notice of Proposed Rulemaking, 60 FR 33779 (June 29, 1995). However, on June 8, 1995, the Governors of Wisconsin and Michigan sent a letter to EPA objecting to EPA's proposal to grant the FCP Community request for redesignation and requested EPA to intervene. The letter also requested that EPA not finalize the proposed redesignation until further regulations were in place to address permitting on non-Federal Class I areas. On August 7, 1995, EPA published a notice cancelling the August 2, 1995, hearing and indefinitely extending the public comment period because the Governors of Wisconsin and Michigan had requested negotiations pursuant to Section 164(e) of the CAA to resolve their dispute regarding the proposed Class I request. In response to the States' requests, EPA suspended the rulemaking to address the States' concerns. *See* 60 FR 40139 (August 7, 1995). In 1997, EPA published an advanced notice of proposed rulemaking to address PSD permitting in non-Federal Class I areas. 62 FR 27158 (May 16, 1997). Additionally, two public workshops were held to gather comments on the advanced proposal. 62 FR 33786 (June 23, 1997). EPA also initiated a dispute resolution process for Michigan and Wisconsin, but after 2 years of discussions, the parties had failed to reach an agreement. Accordingly, EPA published a notice scheduling two public hearings on the proposed redesignation and setting the closing date of the public comment period for September 15, 1997. 62 FR 37007 (July 10, 1997). EPA held two public hearings on the proposed redesignation, the first on August 12, 1997, in Carter, Wisconsin, and the second on August 13, 1997, in Rhinelander, Wisconsin, with an informational meeting preceding each hearing. EPA also provided numerous opportunities for input from local governments in EPA's public notice and hearing process on the proposed rulemaking for the redesignation. The redesignation proposal elicited numerous comments from state governments, local governments and the general public. Responses to these comments are found in the response to comments document, which is part of the record for this rulemaking. However, major comments are summarized in this notice. B. Lands Suitable for Redesignation Section 164(c) of the CAA provides that “Lands within the exterior boundaries of reservations of federally recognized Indian Tribes may be redesignated. * * *” 42 U.S.C. 7474(c). The PSD regulations define “Indian Reservation” as “any federally recognized reservation established by Treaty, Agreement, executive order, or act of Congress.” *See* 40 CFR 52.21(b)(27). The FCP Community's reservation lands are comprised of non-contiguous trust parcels comprising a total area in excess of 11,700 acres, as described in Section II.B. The FCP Community's trust holdings are primarily located in Forest County, with other parcels located in surrounding townships. In its redesignation request, the FCP Community included only those parcels of 80 acres or greater in size and located within Forest County. Several commenters raised concerns that the area proposed for redesignation includes lands that are not within the boundaries of the FCP Indian reservation. To address these concerns, EPA sought further information from both the FCP Community and the Bureau of Indian Affairs
(BIA)regarding the status of lands proposed by the FCP Community for redesignation. By letter of February 24, 1998, the FCP Community provided documents describing the parcels subject to the proposed redesignation. EPA subsequently requested an opinion from the U.S. Department of Interior
(DOI)on the status of those lands, and, DOI's BIA stated as follows: The map compiled by S. Funk and dated 12/13/94 was used for determination purposes. All of those lands identified on that map as tribal trust meet the criteria of Section 164(c) of the CAA as so stated. The parcels noted as tribal trust have all been designated reservation land by proclamation of the Assistant Secretary. 12 12 Letter from Robert Jaeger, Superintendent, BIA Great Lakes Agency, to David Kee, Air and Radiation Division, USEPA Region 5, April 16, 1998. The BIA certification is available for inspection at the public docket for this rulemaking. However, the FCP Community commented that the list of parcels subject to the Class I redesignation request contained errors when compared to the S. Funk map. These errors have been corrected in this action. *See* Section III.B. EPA's action redesignates to Class I only those lands from FCP Community's original list which have been confirmed to be held in trust for the FCP Community and, therefore, are part of FCP Community's Reservation. Several commenters, including the FCP Community, also expressed their belief or concern that lands acquired by a Tribe or State subsequent to this redesignation request would automatically become part of the Class I area without having to follow the redesignation process in 40 CFR 52.21(g). However, EPA believes that a State or Tribe is required to submit a new redesignation request and follow all of the procedural steps to redesignate additional parcels not covered by a previous request where, as here, a Tribe has requested redesignation of specified parcels, and not its entire reservation. In addition, EPA would be required to follow the public notice and comment procedures set out by Congress in section 164(b)(2) of the CAA to review the new request prior to making its determination whether to grant the request. Therefore, any additional lands which are placed into trust for the FCP Community would require the FCP Community to submit a new redesignation request. Some commenters also alleged that the areas proposed for redesignation were either too small or too dispersed to allow for effective air quality management as discussed in sections 162 and 164 of the CAA. EPA disagrees. As explained in the notice that resolves the dispute resolution with the State of Michigan and that is published concurrently with this final action in this **Federal Register** , EPA can only consider the size of an area proposed for redesignation when resolving a dispute under CAA section 164(e). Michigan raised such a dispute and EPA is resolving it in a separate notice. For reasons explained there, EPA concluded that the size of the areas requested for redesignation provides no basis for disapproval. C. EPA's Role in Evaluating Class I Redesignations Several commenters asserted that EPA's consideration of a redesignation request should not be limited to whether a Tribe or State has met the procedural requirements, but rather, that EPA should also consider the substantive basis of the request, examine tribal jurisdiction, and interject its judgment as to whether the Tribe or State redesignation request is warranted by considering such factors as the potential economic impact of the redesignation. EPA disagrees. These comments urge that EPA should, to varying degrees, exceed the congressional imposed limits on EPA's review authority and suggest imposing requirements on a Tribe's redesignation request that go far beyond what the CAA provides. EPA began administering a PSD program in 1974, before Congress promulgated statutory provisions for the PSD program in the Clean Air Act Amendments of 1977, Public Law 95-95, 91 Stat. 685 (1977 Amendments). In its early CAA implementing regulations, EPA played an active role in the review and approval of redesignation requests. *See* 39 FR 42510, 42515 (Dec. 5, 1974). Among other things, EPA's pre-1977 regulations authorized it to disapprove a redesignation request if a State had “arbitrarily and capriciously disregarded” anticipated growth, or the social, environmental, and economic impact of redesignation on surrounding areas. *See* 40 CFR 52.21(c)(3)(vi)(a)(1975); 40 CFR 52.21(c)(3)(ii)(d)(1975). However, in the 1977 CAA Amendments, Congress minimized EPA's authority to disapprove redesignation requests. Specifically, in section 164(b)(2), Congress limited EPA's authority to disapprove a redesignation “only if [EPA] finds, after notice and opportunity for public hearing,” that *the applicable “procedural requirements” of section 164 have not been met* . 42 U.S.C. 7474(b)(2) [emphasis added]. By this language, Congress clearly intended to limit EPA's role to ensuring that a State or Tribe adheres to the procedural requirements of section 164(b)(2). As the House Report accompanying the 1977 Amendments stated: The intended purpose of [the congressional PSD program is] * * * to delete the [preexisting] EPA regulations and to substitute a system which gives a greater role to the States and local governments and which restricts the Federal Government. * * * [b]y eliminating the authority which the Administrator has under current EPA regulations to override a State's classification of an area on the ground that the State improperly weighed energy, environment, and other factors. EPA honored this directive when it revised its PSD regulations following the 1977 CAA Amendments. *See* 42 FR 57479-57480 (Nov. 3, 1977) and thus EPA “will no longer be able to base a disapproval of a proposed redesignation on a finding that the State decision was arbitrary or capricious.” Furthermore, although this language refers to States, the CAA and legislative history make clear that the discussion applies equally to tribal redesignations. *See also Arizona* v. *EPA* . Thus, Congress has limited EPA's review of a proposed redesignation. Under section 164(c)(2) of the CAA, EPA's role is to determine whether the requesting State or Tribe followed specific procedural requirements, and to ensure that the local decision making process provides ample opportunity for interested parties to express their views. It is inappropriate for EPA to interpose superseding Federal views on the merits of the resulting State or Tribal decisions, so long as procedural rigor is assured. Thus, in the case of the FCP Community's redesignation request, EPA's review of the redesignation proposal is limited to ensuring that the FCP Community followed the prescribed statutory requirements. See Section IV.A. For those reasons, EPA concludes that comments regarding the possible economic impact of the redesignation or the merits of the Tribe's request do not provide any basis for EPA to disapprove the redesignation. D. Impact of Dispute Resolution on Redesignation Section 164(e) of the CAA and 40 CFR 52.21(t) provide the current statutory and regulatory framework for resolving disputes between States and Tribes arising from the redesignation of an area. Section 164(e) provides that if the Governor of an affected State or the appropriate Indian Governing Body of an affected Tribe disagrees with a request for redesignation by either party, then the governor or Indian ruling body may request that EPA negotiate with the parties to resolve the dispute. Pursuant to the statute and implementing regulations, EPA is not a party to the dispute. The Administrator of EPA is by statute designated as the final arbiter of the dispute. The statute provides that either party can ask the Administrator for a recommendation to resolve the dispute, and if the parties fail to reach an agreement during the negotiations, “the Administrator shall resolve the dispute and his determination, or the results of agreements reached through other means, shall become part of the applicable plan and shall be enforceable as part of such plan.” *See* section 164(e). The statute further provides that, “In resolving such disputes relating to area redesignation, the administrator shall consider the extent to which the lands involved are of sufficient size to allow effective air quality management or have air quality related values of such an area.” Section 164(e). As previously noted in Section IV.C, section 164(b)(2) of the CAA provides a general rule which allows EPA to disapprove a redesignation request “only if [it] finds, after notice and opportunity for public hearing,” that applicable “procedural requirements” of the section are unmet. Section 164(e) of the CAA creates a limited exception to this general rule and requires EPA to consider additional factors where a State or Tribe requests that EPA enter into negotiations to resolve a State-Tribal dispute. Section 164(e) mandates that when EPA resolves a dispute, it must “consider the extent to which the lands involved are of sufficient size to allow effective air quality management or have air quality related values of such area.” But where the parties reach agreement, the agreement becomes part of the applicable plan and the dispute is ended. Similarly, where EPA resolves a dispute in favor of the party requesting redesignation, dispute resolution is also terminated, and the only remaining question is whether the Tribe met the requirements of section 164(b)(2). EPA explained its role in the dispute resolution process as follows: When the dispute resolution process in section 164(e) is invoked by an affected state or Tribe, EPA is called upon to participate in that process and to recommend a resolution, if requested by the parties, or to finally resolve the dispute, if the parties are unable to reach agreement. However, where the parties successfully reach agreement through the dispute resolution process, EPA is inclined to read section 164(e) of the CAA to provide that EPA has no further role to play in the dispute resolution process. 71 FR 75696. EPA received letters from the Governors of Michigan and Wisconsin, dated June 8, 1995, requesting that EPA initiate dispute resolution. Between June 1995 and July 1999, in two separate rounds of dispute resolution proceedings, the parties utilized a professional mediation service, under contract to EPA, to mediate the separate disputes between Wisconsin and the FCP Community, and between Michigan and the FCP Community. EPA has determined that no issues raised during either dispute resolution process would provide a basis on which EPA would deny the FCP Community's request for redesignation. For this reason, EPA is treating its resolution of the disputes invoked by the States of Wisconsin and Michigan under section 164(e) of the CAA separately from its approval of the redesignation request, and is publishing them separately, but at the same time as this final action. EPA provides a complete discussion of the resolution of the intergovernmental disputes in these two separate **Federal Register** notices. E. Appropriate Mechanism for Codifying Class I Area 1. Role of Federal Implementation Plans
(FIP)As noted in section IV.A, Section 164 of the CAA affords States and Tribes the right to request that EPA redesignate lands under their control. If all procedural requirements are met, EPA must approve this request. However, several commenters asserted that EPA has no authority to implement the redesignation by any mechanism but a TIP. EPA disagrees. Before the FCP Community submitted this request for redesignation from Class II to Class I the Yavapai Apache Tribe of Arizona submitted such a request, and on October 2, 1996, EPA approved the request. The State of Arizona, within which the Yavapai Apache lands were located, had raised objections to the redesignation and requested to enter into section 164(e) dispute negotiations with the Yavapai Apache. The EPA held a meeting with the parties, but ultimately no agreement was reached. The EPA was forced to resolve the dispute, and did so by granting the redesignation request and codifying the redesignation in a FIP. 61 FR 56461 (November 1, 1996) and 61 FR 56450 (November 1, 1996). The State of Arizona continued to dispute the approval of the reservation to Class I and filed a suit before the United States Court of Appeals for the Ninth Circuit. *See Arizona* v. *EPA* . The Ninth Circuit's decision stated, among other things, that EPA had not abused its discretion by approving the Tribe's redesignation request but that EPA should have codified the Class I area in a TIP rather than a FIP, and remanded the redesignation back to the EPA regional office so that EPA could follow the appropriate procedures for promulgating the Class I area as a TIP. On February 12, 1998, however, EPA promulgated a final rule under section 301 of the CAA entitled “Indian Tribes: Air Quality Planning and Management.” 63 FR 7254 (Feb. 12, 1998). This rule, generally referred to as the “Tribal Authority Rule” or “TAR,” discusses those provisions of the CAA for which it is appropriate to treat Indian Tribes in the same manner as States and establishes the requirements that Indian Tribes must meet if they choose to seek such treatment. The EPA also concluded with this rule that certain provisions of the CAA should not be applied to Tribes in exactly the same manner in which they were applied to States. One of those provisions was CAA 110(c)(1), which provides the Administrator with the authority to promulgate a FIP within 2 years of finding that a State plan is insufficient. 63 FR at 7265. EPA reasoned that Tribes, unlike states, “in general are in the early stages of developing air planning and implementation expertise” because the specific authority for Tribes to establish air programs was first expressly addressed in 1990. Id. at 7264-7265. Because Tribes were only recent participants in the process, EPA determined it would be inappropriate to hold them to the same deadlines and Federal oversight as the states. Id. at 7265. The EPA noted, however, that it was “not relieved of its general obligation under the CAA to ensure the protection of air quality throughout the nation, including throughout Indian country.” Id. The EPA concluded that the Agency could “act to protect the air quality pursuant to its `gap-filling' authority under the CAA as a whole” and that “section 301(d)(4) provides EPA with discretionary authority, in cases where it has determined that treatment of Tribes as identical to states is `inappropriate or administratively infeasible,' to provide for direct administration through other regulatory means.” Id. Under that authority, EPA adopted 40 CFR 49.11, which established the framework for adoption of FIP provisions for Indian Country: “[The Administrator] [s]hall promulgate without unreasonable delay such Federal implementation plan provisions as are necessary or appropriate to protect air quality, consistent with the provisions of section 304(a) (sic 301(a)) and 301(d)(4), if a Tribe does not submit a tribal implementation plan meeting the completeness criteria of 40 CFR 51, Appendix V, or does not receive EPA approval of a submitted tribal implementation plan.” 40 CFR 49.11(a). The intent of this provision was to recognize that Tribes may not initially have the capability to implement their own delegated CAA programs and that the TAR does not relieve EPA of its general obligation under the CAA to protect air quality throughout the nation, including in Indian country. *See* 63 FR 7265. Therefore, the TAR established two possible routes for the codification of a Class I redesignation on Tribal lands:
(1)A TIP, if one has been developed by the Tribe and approved by EPA; and
(2)A FIP, if a TIP did not exist and a FIP was necessary to protect air quality. For that reason, and consistent with the approach detailed in the TAR, the FCP Community sent a letter to Francis X. Lyons, Regional Administrator of EPA Region 5, requesting that EPA promulgate the requested redesignation of the proposed Class I area parcels in a FIP, as opposed to utilizing a TIP, because the FCP Community was continuing to build its capacity and infrastructure to run its air program and was not yet ready to submit its own TIP. On August 23, 1999, EPA sent a letter to the FCP Community agreeing that a FIP would be an appropriate option for implementing the Class I area should EPA grant the FCP Community's request. On December 18, 2006, EPA published a supplemental proposal seeking comment on the proposed codification of the FCP Community redesignation in a FIP. 71 FR 75694 (December 18, 2006). In that proposal, EPA expressed its view that, consistent with the TAR, until such time as the FCP Community develops a TIP and has it approved, EPA retains the authority to promulgate the redesignation approval in a FIP. The PSD program is implemented in Wisconsin under an EPA approved SIP which excludes all of Indian country within the State. In the December 18, 2006 proposal, EPA explained: Wisconsin initially implemented the Federal PSD program under a delegation of authority from EPA. Wisconsin subsequently submitted a PSD rule and program which EPA approved for all sources in Wisconsin except for sources located in tribal lands and other sources that require permits issued by the EPA. *See* 64 FR 28748 (May 27, 1999). The current EPA regulations addressing the PSD program in Wisconsin are found at 40 CFR 52.2581. 71 FR 75694, 75698. Therefore, EPA's December 18, 2006, proposal to codify the Forest County Potawatomi Class I area is an amendment to an existing FIP for Wisconsin Indian country, rather than the promulgation of a new FIP. For those reasons, EPA does not agree with any suggestion that promulgation of a FIP cannot be the mechanism for implementing a redesignation of tribal lands as Class I. As discussed previously in this section, the FCP Community has formally requested that EPA approve its request to redesignate certain reservation lands and has demonstrated that it has met the necessary procedural requirements. EPA's promulgation of a FIP, at the Tribe's express request because it is not yet ready to develop its own TIP, does not supplant the Indian governing body's role in making the decision to request EPA approval of the redesignation. However, another commenter also argues that use of a FIP is inappropriate because section 164(c) of the CAA states that only the appropriate Indian governing body may redesignate reservation lands, which, the commenter suggests, leaves no role for EPA. The commenter is mistaken. Section 164 of the CAA sets out the requirements for non-federal land redesignations and clearly specifies that the decision to redesignate will be made by the appropriate State or Indian governing body following certain procedural steps, discussed in Section IV.A, and that EPA makes the decision whether to approve the redesignation. The Tribe has requested the redesignation and EPA has approved it. That is fully consistent with CAA section 164(b)(2). Furthermore, one State commenter asserts that a FIP is inappropriate in this case because it is not needed to protect the air quality of the lands proposed for redesignation because these lands are already protected as Class II areas under the CAA. EPA does not agree. As the FCP Community's request for redesignation makes clear, the FCP Community is seeking greater protection for these lands than is presently provided under their Class II classification. Section 164(c) of the CAA provides that States and Tribes may redesignate lands of their choosing where they meet the procedural requirements for redesignation. Moreover, this State commenter argues that a FIP is inappropriate because the TAR rule addresses only “tribal air quality programs” and Class I redesignation is not such a program. EPA disagrees that the use of a FIP is inappropriate for implementation of anything except a tribal air quality program. As discussed at the beginning of this section, 40 CFR 49.11 states in pertinent part that “[The Administrator] [s]hall promulgate without unreasonable delay such Federal implementation plan provisions *as are necessary or appropriate to protect air quality* * * * if a Tribe does not submit a tribal implementation plan. * * *” (emphasis added). Where, as here, the FCP Community has declined to submit a TIP, a FIP is an appropriate mechanism to protect the air quality of the redesignated Class I lands. 2. Contents of Implementation Plan Both Wisconsin and Michigan objected to the proposed redesignation and requested dispute resolution under section 164(e) of the CAA. To resolve the dispute with the State of Wisconsin, the FCP Community and Wisconsin entered into a Memorandum of Agreement (FCP Community—Wisconsin MOA) for implementation of the proposed Class I area in Wisconsin. The terms of the agreement are not appropriate for inclusion into the FIP, however, because they do not apply to the effects of the Class I Redesignation. Rather, the agreement establishes certain special provisions regarding the effects of the Class I redesignation on potential sources outside the redesignated area. Those provisions have been summarized by EPA as follows: [T]he agreement between the FCP Community and Wisconsin subjects all major sources in Wisconsin located within a ten
(10)mile radius of any redesignated Tribal land to performing an increment analysis and to meeting consumption requirements applicable to a Class I area. Major sources located outside of ten
(10)miles are subject to increment analysis and consumption requirements applicable to any redesignated Tribal land as if it were a Class II area. Also under the agreement, all major sources within sixty-two
(62)miles are subject to an analysis of their impact on air quality related values (AQRVs) of the redesignated Tribal lands to determine if they will have an adverse impact on these AQRVs. 71 FR 75696. As these special provisions differ from Wisconsin's currently approved SIP for the PSD program, for this portion of the FCP Community—Wisconsin MOA to become enforceable will require revision of the Wisconsin SIP, which otherwise would not recognize a limitation of the area in which the Class I increment analysis must be conducted. EPA takes the position that it generally will not interfere with the agreements reached between Tribes and States through the CAA's 164(e) dispute resolution process. However, to the extent that the agreement reached under the terms of the MOA allows for restricting the requirements normally associated with Class I areas as these apply to sources located outside a 10-mile radius of the redesignated reservation lands, EPA takes the position that a revision of the Wisconsin SIP will be necessary to apply this provision to potential sources located outside the boundaries of the redesignated parcels. Therefore, EPA disagrees with the State commenter who argued that a SIP cannot be used in conjunction with any aspect of a Class I rulemaking. EPA received several comments on language to be used in the implementation plan. The FCP Community has stated that EPA has used out of date language in the proposed FIP and therefore any FIP should use the current language for 40 CFR 52.2581. EPA agrees, and this change is noted in Section III.B. The FCP Community also states that EPA's proposed FIP leaves ambiguous whether the provisions of 40 CFR 52.21 would apply to the redesignated FCP Community Reservation Class I land. EPA agrees and has modified the FIP to make clear that the provisions of the PSD program apply to the redesignated reservation lands. This change is also noted in Section III.B. F. Air Program Implementation in Indian Country/Role of Tribes in Protecting Air Quality Several commenters argued that EPA should deny the FCP Community's request because if this request is granted, then other Tribes will be encouraged to seek Class I redesignation and could eventually result in a nationwide blanket of Class I areas. EPA disagrees. Any redesignation request, by either a State or Tribe will have to consider the area of impact in its technical analysis supporting the redesignation request. Furthermore, the CAA does not require a State or Tribe to project potential future redesignations or speculate about their potential, and does not allow EPA to consider the likelihood of future redesignations as a basis for a disapproval under CAA section 164(b)(2). Any future proposed redesignation will be reviewed on a fact-specific basis according to the applicable regulations. Other commenters expressed their view that because State air programs already address air quality, there is no need for a Tribe to implement its own air program, and, additionally, tribal air programs will unfairly burden existing state air programs by duplicating or adding to existing state requirements. EPA disagrees. EPA's authorization of State air programs does not extend to federally recognized Indian reservations, which are excluded from State SIP approvals. CAA section 164(c) expressly provides that Tribes are responsible for redesignating reservations, and that Tribes can redesignate their lands when they conclude that the redesignation is appropriate to protect Reservation air quality. *See* TAR, 63 FR 7254, at 7254. It is Congress, through the CAA, that has provided Tribes (and States) with the authority to redesignate certain lands and to implement programs under CAA authorities. The CAA states that “air pollution prevention * * * and air pollution control at the source is the primary responsibility of States and local governments * * *” and that “each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State. * * *” 42 U.S.C. 7401(a)(3) and 7407(a). States, however, are not the exclusive regulating entity under the CAA. In the 1990 amendments to the CAA, Congress amended the CAA to add sections 110(o) and 301(d), which allow Tribes to administer many CAA programs in the same manner as States. *See* 59 FR 43956. EPA furthered this congressional purpose when it promulgated regulations for implementation of CAA programs by Tribes. *See* 63 FR 7254 (February 12, 1998). These amendments reflect Congressional recognition that Tribes should be primarily responsible for environmental regulations and decisions that impact reservation environments. Nevertheless, redesignation of the FCP Community lands to Class I will not require the Tribe to develop any air quality regulations. Because northeastern Wisconsin is a designated Class II area and is an attainment area, PSD requirements already apply to sources there. The regulations currently in place under Wisconsin's PSD program already require the owner/operator of proposed major stationary sources locating in PSD areas to submit a permit application containing an analysis of their air quality impacts and to install “best available control technology” to control emissions. *See* sections 165(a) and 169(3) of the CAA. The air quality analysis must show that the proposed source will not cause or contribute to a violation of an applicable PSD increment or a NAAQS, as demonstrated by air quality modeling. *See* 40 CFR 52.21(c) and (d). After notice and public hearing for a proposed permit, the permitting authority reviews the permit application and determines whether the PSD permit requirements have been met. Thus following this rulemaking granting Class I status to FCP Community reservation lands, the States of Wisconsin and Michigan will remain, for their respective lands, the permitting authorities for sources located outside the FPC Community reservation. EPA will remain the federal permitting authority for proposed sources locating within the FCP Community reservation boundaries until the FCP Community applies for and receives delegation of this authority. Until Wisconsin amends its SIP to specify how the redesignation of the Reservation as a Class I area will affect sources in Wisconsin, such sources will treat the Reservation identically to the way they would treat any other Class I area. Sources in Michigan will treat the Reservation as a Class I area as they would any other Class I area under the FIP that currently applies to Michigan, and which will not be altered by this action. G. Air Quality Related Values of Redesignated Lands Commenters challenged the redesignation on the basis that the Reservation does not have appropriate air quality related values. EPA, however, does not believe those comments provide any basis for rejecting the redesignation request. Neither Section 164(b) of the CAA nor EPA's implementing regulations governing redesignation require a State or Tribe requesting a redesignation to demonstrate or establish that the affected lands have AQRVs, and Congress did not make AQRVs a prerequisite for redesignation of non-federal Class I areas. It is therefore unnecessary for EPA to determine what AQRVs the lands at issue might possess in order for the Agency to act on, including granting, the redesignation request. *See* 61 FR 56450, 56458-56459 (Nov. 1, 1996) (redesignation of Yavapai-Apache lands). While States and Tribes “may redesignate such [other] areas [within their jurisdiction] as [they] deem[] appropriate”, there is no requirement that states or Tribes identify AQRVs before proposing to redesignate an eligible area. *See* CAA section 164(a), 40 CFR 52.21(g)(4). H. Impact of Class I Redesignation on Minor Sources Some commenters argue against the redesignation because they believe that the economic impact of Class I redesignation would affect residential, agricultural, and small businesses and small business growth in the area or the State of Wisconsin. EPA disagrees with this comment. Analyses included in the FCP Community's *Technical Report* show that only large stationary sources proposing to locate in close proximity to the Reservation lands would be affected by the redesignation and regardless of whether they are in a Class II or a Class I area, such major sources are already required to obtain an air quality permit, conduct modeling analyses, and use the best available technology to control emissions under the PSD program. In terms of other businesses, the redesignation will not affect mobile emission sources such as cars because no vehicle inspection and maintenance (smog-check) programs would be required. In addition, redesignation would not limit the home use of wood-burning stoves, nor would it create restrictions on controlled forest burning, or require dirt roads to be paved to reduce dust and particulates. Thus, home and small business owners in nearby communities should not be affected by a Class I designation of Reservation lands. Furthermore and as explained in Section IV.C, economic impacts, including impacts on minor sources, are not within the scope of EPA's review when evaluating a redesignation request. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. However, as part of its application package for Class I redesignation, the FCP Community prepared an analysis of the potential costs and benefits associated with this action on the affected region (Forest County and those counties bordering Forest County). This analysis directly supports a finding that the impact of the proposed redesignation would not result in an adverse annual impact to the economy of $100 million or more. *See* “EPA memorandum dated October 25, 2004” in the public docket for this action. As discussed in greater detail in the memorandum, the FCP Community analysis identifies those economic sectors with the largest employment in the area. These are industry, manufacturing and trade, which together account for 46% of the jobs in the affected area. To evaluate the effect of Class I redesignation on economic expansion and future industrial plant development in the affected area, the FCP Community prepared an independent air dispersion modeling analysis to determine the air quality impacts on the Class I area from various new projects. These included a 250-ton-per-day paper mill, three different types of power plants, and a mining project. The modeling and screening results analyzed indicate that the proposed Class I redesignation should not have major effects on economic expansion and industrial development in the region. The redesignation could restrict the sifting of large paper mills and large coal-fired powered plants to at least 10 km from the reservation, and would limit the development of multiple projects that would have an unacceptable cumulative effect on the Class I increments, but none of the known proposed developments in the region would be adversely affected. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq* . We are not promulgating any new paperwork requirements (e.g., monitoring, reporting, recordkeeping) as part of this final action. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations (40 CFR parts 51 and 52) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* , and has assigned OMB control number 2060-0003, EPA ICR number 1230.20. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. This analysis included an examination of the additional regulatory burden, per regulated unit, on those sources constructing or modifying near a Class I area, and which may be required to perform a Federal Class I area analysis to determine the effect of the proposed source on AQRV inside the Class I area, and on the consumption of increment, where the baseline has been triggered. It is important to note that not all sources located near Class I areas would have to perform such monitoring; these requirements apply only when emissions from the source have the potential to impact the Class I area. The EPA's analysis for OMB included the additional burden placed upon the regulated community as well as on State and Federal agencies. The redesignation of FCP Community lands from Class II to Class I is wholly consistent with the analysis put forth in EPA's ICR and OMB's approval and no new paperwork requirements are being promulgated with this action. C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other 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 this final action on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)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; or
(3)a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. This action does not require a regulatory flexibility analysis because it will not have a significant economic impact on a substantial number of small entities. The EPA believes that the reclassification of the proposed area to Class I will impose virtually no additional requirements on small entities, regardless of whether they are minor sources or major sources. For small entities that are also minor sources, since at the present time the baseline concentrations for this area have not been triggered and none of the Class I increments have yet been consumed, minor emission sources are unaffected by PSD requirements. Should the Class I increments be completely consumed in the future, it is possible that some pollution control requirements would fall to minor sources. However, any such future pollution control requirements imposed on off-reservation sources would be under the jurisdiction of the states, not EPA. Therefore, EPA is not in a present or future position to directly regulate small entities and therefore is not required to conduct an RFA analysis. For small entities that are major sources, the impact is not expected to be substantial. As demonstrated in section V.A., the requirements for demonstrating compliance with the NAAQS and PSD increments for major facilities in and surrounding Class I areas are similar to the requirements for major facilities in and surrounding Class II areas. Therefore, this action will not have a significant impact on a substantial number of small entities. While EPA is not required to conduct an RFA analysis, as a matter of good public policy, the Agency has reviewed information on the impact of the redesignation provided by the FCP Community in its *Technical Report* submitted pursuant to the Tribe's request for Class I redesignation. In this document, the Tribe reviewed the potential impact of the Class I redesignation on various types of sources, concluding that impacts of the redesignation to Class I would impact only certain major stationary sources, and would impose no additional requirements on minor sources. For example, air dispersion modeling and EPA-approved screening performed for the Tribe's TSD demonstrates that a 140 MW natural gas fired combustion turbine power plant could be constructed and operated directly adjacent to the reservation without violating any of the Class I increments. Power plants of this type produce relatively high levels of nitrogen oxides (NO <sup>X</sup> ), which are their major emissions, yet despite its direct proximity to a Class I area, such a facility would impact only a small fraction (~4%) of the allowable Class I increment for NO <sup>X</sup> . Considering that the FCP Community analysis shows that a major gas-fired power generating facility could be operated immediately next to the reservation without significant impacts, and that only very large industrial projects located within approximately 10 km of the reservation would be affected by the redesignation, it appears very unlikely that any small businesses located within 100 kilometers would produce emissions in large enough quantities to trigger the Class I restrictions. Nevertheless, it is possible that a small business located close enough to the reservation may be a major source of criteria air pollutants. Even in that event, the PSD requirements for Class I areas would be very unlikely to impose a significant financial burden on such a small business. If it is an existing business at the time the redesignation goes into effect, it would not be subject to the PSD permitting requirements, which apply only to new stationary sources or major modifications to existing sources. Even if the small business in question was new to the Class I area, hence subject to PSD permitting, the redesignation would still not impose additional significant financial or regulatory burdens on the small entity. As a major source of criteria air pollutants, the small business would be subject to PSD permitting regulations whether the reservation had been redesignated to Class I or had remained a Class II area, as it is now. Major stationary sources proposing to locate in any PSD area, regardless of whether it is Class II or Class I, must still conduct the same type of analyses to measure the impact of their emissions on the allowable increments and use the best available control technology to reduce their emissions and minimize adverse effects. Should the area remain Class II, the major source would still be required to perform a modeling analysis to ensure that the Class II increments are protected in order to obtain a permit. Since a modeling analysis is required in any case, the cost of adding additional receptor points, if needed, to the modeling analysis to gather the necessary data to ensure that the Class I increments will also be protected should be relatively small. Likewise, since every major stationary source proposing to locate in a PSD area, whether it has been designated as Class I or Class II, must employ “best available control technology” to reduce emissions, proximity to a Class I area generally would not affect the level of control required to meet BACT. In short, regardless of whether they are in a Class II or a Class I area, major sources are required to obtain an air quality permit, conduct modeling analyses, and use the best available technology to control emissions under the PSD program. Thus, as a general rule, redesignation should not inflict additional control costs on a source. Under certain circumstances a major source may be required to achieve further decreases in emissions to reduce its impact on the air quality related values of a Class I area. Such a requirement would necessitate further regulatory action by either the FCP Community or EPA, however, and the impacts of the specific requirements can be appropriately assessed at that time. Additionally, it would be very unusual for a small business to also be a major source and a substantial number of small entities should certainly not be so affected. Several other Indian Tribes have redesignated tribal lands to Class I in other parts of the country, and their experience can provide us with some insight into the impact redesignation typically has on small entities in the vicinity. These include the Northern Cheyenne Tribe, Montana; Flathead Indian Reservation, Montana; Fort Peck Indian Reservation, Montana and the Spokane Indian Reservation, Washington, which were redesignated as Class I areas between 1977 and 1990. Thus far, there has been very little economic impact on small businesses, nearby towns, local governments or other small entities following Class I redesignation in those areas. The EPA has no reason to believe that same pattern of minimal economic impact to small businesses will not be repeated in Forest County and the surrounding counties. Small entities that are minor sources of air pollution will not be affected at all by this action at this time. The PSD permit program does not cover minor sources and, as previously discussed, EPA does not directly regulate minor entities. The reclassification of the proposed area to Class I therefore imposes virtually no additional requirements on small entities since the baseline concentration level for Forest County has not yet been triggered and none of the PSD increments in the area have yet been consumed. The baseline concentration is the conceptual reference point or ”starting” point for determining air quality deterioration in an area subject to the PSD program. Thus, the baseline concentration is essentially the ambient air quality existing at the time the first complete PSD application is made for a major new source affecting a PSD baseline area. Since no PSD permit application triggering a baseline date has been submitted in the Forest County area, there has not been any consumption of the PSD increments in the area. Should major and minor sources of pollution consume all of the available increment in an area at some point in the future, it is possible that some pollution control requirements would then fall to minor sources, but since roughly 75% of the land in Forest County is National Forest, and there is presently very little industrial development in the area, there is likely to be little consumption of the Class I increments for some time to come. After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities that are not major sources because this action affects only major stationary sources, as defined by 40 CFR 52.21. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures 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, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives, and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. The EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The redesignation would not impose significant additional financial or regulatory burdens on a new or modified source subject to the PSD permitting requirements. As a major source of criteria air pollutants, a new or modified source would be subject to PSD regulations whether the reservation had been redesignated to Class I or had remained a Class II area, as it is now. New major stationary sources proposing to locate in any PSD area, regardless of whether it is Class II or Class I, must still conduct the same type of analyses to measure the impact of their emissions on the allowable increments and use the best available control technology to reduce their emissions and minimize adverse effects. No additional permits would be required as a result of a redesignation of FCP Community reservation lands. In addition, the EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments because, as already stated in other sections of this regulatory package, the redesignation from a Class II to a Class I area would not impose additional significant financial or regulatory burdens on sources. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism,” 64 FR 43255 (August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under section 6 of Executive Order 13132, we may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or we consult with State and local officials early in the process of developing the proposed regulation. We also may not issue a regulation that has federalism implications and that preempts State law, unless we consult with State and local officials early in the process of developing the proposed regulation. This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The rule merely implements an authority currently available to Indian Tribes to redesignate their reservation lands under the PSD program of the CAA, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this rule. Although section 6 of Executive Order 13132 does not apply to this rule, EPA did consult with State and local officials in developing this rule. A summary of the concerns raised during that consultation and EPA's response to those concerns are provided in the public docket of this rulemaking. 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 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The EPA has concluded that this final rule establishes federal standards and will have tribal implications. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. Thus, consistent with section 3 of the Executive Order, in the process of developing this final action, EPA consulted with FCP Community tribal officials to allow them to have meaningful and timely input into its development. EPA consulted with representatives of the FCP Community prior to their submission of the redesignation request. During this consultation, EPA explained the function of the CAA's redesignation provision, differences between Class I and Class II designations, and alternatives to the proposed Class I redesignation. The FCP Community chose to submit a request for redesignation to Class I on February 14, 1995 to further their goal of exercising control over reservation resources and to better protect the members of their community. Since the FCP Community submitted its request for redesignation, EPA has kept the FCP Community informed of its process for completing the rulemaking through written correspondence, conference calls, and face to face meetings when appropriate. Records of these communications are found in the docket for this final action. Most recently, EPA officials held consultations with the FCP Community between February and August 2007 to discuss this final action and to answer the Community's questions. Overall, EPA expects that the impact of the redesignation to Class I will be positive. G. Executive Order 13045: Protection of Children From Environmental Health & Safety Risks *Executive Order 13045:* “Protection of Children from Environmental Health Risks and Safety Risks,” 62 FR 19885 (April 23, 1997), applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866; and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate effect on children. Redesignation of the identified parcels of the FCP Community Reservation to Class I status will reduce the allowable increase in ambient concentrations of various types of pollutants. The reduction of these pollutants can only be expected to better protect the health of tribal members, members of the surrounding communities, and especially children and asthmatics. The adverse health effects of exposure to high levels of criteria air pollutants such as sulfur dioxide and fine particulate matter are well known and well documented. Sulfur dioxide, for example, is known to irritate the respiratory system. As explained in the FCP Community's Technical Support Document, exposure to high concentrations for even short periods can cause bronchial constriction and exposure to lower concentrations of sulfur dioxide for longer periods and suppresses the respiratory system's natural defenses to particles and bacteria. 13 Children and asthmatics are especially vulnerable to the adverse health effects of sulfur dioxide. 14 If the Class I redesignation is codified in a FIP, the allowable increase in ambient concentrations of sulfur dioxide after redesignation of the reservation to Class I status (on an annual arithmetic mean basis) will be one-tenth of the current Class II allowable increase in ambient concentrations, thus providing greater health protection to children from such air pollutants. 13 SO <sup>2</sup> —How Sulfur Dioxide Affects the Way We Live & Breathe. U.S. EPA Office of Air Quality Planning & Standards (November 2000) (available at *http://www.epa.gov/air/urbanair/so2/index.html* ). 14 Health and Environmental Impacts of SO <sup>2</sup> (September 30, 2003) (available at *http://www.epa.gov/air/urbanair/so2/hlth1.html* ). Likewise, the allowable increase in ambient concentrations of particulate matter after Class I redesignation (on an annual basis) will be approximately one-fourth of the current Class II increase. Particulate matter consists of airborne particles and aerosols ranging in size from less than 1 micrometer to more than 100 micrometers. Aside from natural sources, industrial activity can release great quantities of particulates (dust, soot, ash and other solid and liquid particles). Combustion products emitted during power generation, heating, motor vehicle use and various industrial processes are also classified as particulate matter. The vast majority (~99%) of such inhalable particulate matter is trapped in the upper respiratory tract, but the remainder enters the windpipe and the lungs, clinging to the protective mucosa. The smallest particles are deposited in the alveoli and capillaries of the lung, where they impair the exchange of oxygen and causes shortness of breath. Children, the elderly, and people with pulmonary problems and respiratory conditions (e.g., emphysema, bronchitis, asthma, or heart problems) are the most susceptible to these debilitating effects. 15 Adverse health effects from particulate matter are often cumulative and progressive, worsening as particulates gradually collect in the lungs following repeated, long-term exposure. 16 15 Health and Environmental Impacts of PM (30 September 2003) (available at *http://www.epa.gov/air/urbanair/pm/hlth1.html* ). 16 PM—Chief Causes for Concern (30 September 2003) (available at *http://www.epa.gov/air/urbanair/pm/chf.html* ). Fine particulate matter is the worst offender in that regard. Scientific studies have shown that particulate matter, especially fine particles (those particles with an aerodynamic diameter of less than 2.5 micrometers and commonly known as PM <sup>2.5</sup> ), are retained deep within the lung. 17 Short term exposure to such fine particulate matter can cause lung irritation and may impair immune responses. Some of the material from the particles can dissolve in the lungs, causing cell damage, and the particles themselves may consist of compounds that are toxic or which form acids when combined with moisture in the lungs. Long-term lower level exposures can cause cancer and other respiratory illnesses. Reducing the allowable increase in ambient concentrations of particulate matter by roughly 75% should thus provide greater health protection from such afflictions to children on the reservation and in the surrounding communities. 17 Information on Particulate Matter
(FINE)PM Condensed from Health and Environmental Effects of Particulate Matter; U.S. EPA Office of Air Quality Planning and Standards (July 1997). (available on *http://www.air.dnr.state.ga.us/information/pm25.html* ). In short, the environmental health or safety risks addressed by this action do not present a disproportionate risk to children. In fact, they are expected to have a positive rather than a negative impact on children's health and the environment. H. *Executive Order 13211:* Actions That Significantly Effect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. *Executive Order 12898:* Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, 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 final rule will not have disproportionately high and 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 and adverse human health or environmental effects on any population, including any minority or low-income population. The EPA believes that the redesignation of FCP Community lands in a FIP from Class II to Class I area should not raise any environmental justice issues since it will reduce the allowable increase in ambient concentrations of various types of pollutants. Consequently, this redesignation should result in health benefits to tribal members and members of the surrounding communities. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A Major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Therefore, this rule will be effective May 29, 2008. VII. Statutory Authority The statutory authority for this final action is provided by sections 110, 301 and 164 of the CAA as amended (42 U.S.C. 7410, 7601, and 7474) and 40 CFR part 52. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides, Volatile organic compounds. Dated: April 18, 2008. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, part 52, chapter I, of title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart YY—Wisconsin 2. Section 52.2581 is amended by adding paragraph
(f)to read as follows: § 52.2581 Significant deterioration of air quality.
(f)Forest County Potawatomi Community Reservation.
(1)The provisions for prevention of significant deterioration of air quality at 40 CFR 52.21 are applicable to the Forest County Potawatomi Community Reservation, pursuant to § 52.21(a).
(2)In accordance with section 164 of the Clean Air Act and the provisions of 40 CFR 52.21(g), those parcels of the Forest County Potawatomi Community's land 80 acres and over in size which are located in Forest County are designated as a Class I area for the purposes of prevention of significant deterioration of air quality. For clarity, the individual parcels are described below, all consisting of a description from the Fourth Principal Meridian, with a baseline that is the Illinois-Wisconsin border:
(i)Section 14 of Township 36 north (T36N), range 13 east (R13E).
(ii)Section 26 of T36N R13E.
(iii)The west half (W 1/2 ) of the east half (E 1/2 ) of Section 27 of T36N R13E.
(iv)E 1/2 of SW 1/4 of Section 27 of T36N R13E.
(v)N 1/2 of N 1/2 of Section 34 of T36N R13E.
(vi)S 1/2 of NW 1/4 of Section 35 of T36N R13E.
(vii)Section 36 of T36N R13E.
(viii)Section 2 of T35N R13E.
(ix)W 1/2 of Section 2 of T34N R15E.
(x)Section 10 of T34N R15E.
(xi)S 1/2 of NW 1/4 of Section 16 of T34N R15E.
(xii)N 1/2 of SE 1/4 of Section 20 of T34N R15E.
(xiii)NW 1/4 of Section 28 of T34N R15E.
(xiv)W 1/2 of NE 1/4 of Section 28 of T34N R15E.
(xv)W 1/2 of SW 1/4 of Section 28 of T34N R15E.
(xvi)W 1/2 of NE 1/4 of Section 30 of T34N R15E.
(xvii)SW 1/4 of Section 2 of T34N R16E. (xviii) W 1/2 of NE 1/4 of Section 12 of T34N R16E.
(xix)SE 1/4 of Section 12 of T34N R16E.
(xx)E 1/2 of SW 1/4 of Section 12 of T34N R16E.
(xxi)N 1/2 of Section 14 of T34N R16E.
(xxii)SE 1/4 of Section 14 of T34N R16E. (xxiii) E 1/2 of Section 16 of T34N R16E.
(xxiv)NE 1/4 of Section 20 of T34N R16E.
(xxv)NE 1/4 of Section 24 of T34N R16E.
(xxvi)N 1/2 of Section 22 of T35N R15E. (xxvii) SE 1/4 of Section 22 of T35N R15E. (xxviii) N 1/2 of SW 1/4 of Section 24 of T35N R15E.
(xxix)NW 1/4 of Section 26 of T35N R15E.
(xxx)E 1/2 of Section 28 of T35N R15E.
(xxxi)E 1/2 of NW 1/4 of Section 28 of T35N R15E. (xxxii) SW 1/4 of Section 32 of T35N R15E. (xxxiii) E 1/2 of NW 1/4 of Section 32 of T35N R15E. (xxxiv) W 1/2 of NE 1/4 of Section 32 of T35N R15E.
(xxxv)NW 1/4 of Section 34 of T35N R15E. (xxxvi) N 1/2 of SW 1/4 of Section 34 of T35N R15E. (xxxvii) W 1/2 of NE 1/4 of Section 34 of T35N R15E. (xxxviii) E 1/2 of Section 36 of T35N R15E.
(xxix)SW 1/4 of Section 36 of T35N R15E.
(xl)S 1/2 of NW 1/4 of Section 36 of T35N R15E.
(xli)S 1/2 of Section 24 of T35N R16E.
(xlii)N 1/2 of Section 26 of T35N R16E. (xliii) SW 1/4 of Section 26 of T35N R16E.
(xliv)W 1/2 of SE 1/4 of Section 26 of T35N R16E.
(xlv)E 1/2 of SW 1/4 of Section 30 of T35N R16E.
(xlvi)W 1/2 of SE 1/4 of Section 30 of T35N R16E. (xlvii) N 1/2 of Section 34 of T35N R16E. [FR Doc. E8-8946 Filed 4-28-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2007-1188; FRL-8559-5] Approval and Promulgation of Air Quality Implementation Plans; Delaware; Control of Stationary Generator Emissions AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a State Implementation Plan
(SIP)revision submitted by the State of Delaware. This SIP revision contains provisions to control emissions from stationary generators. EPA is approving this SIP revision in accordance with the Clean Air Act (CAA). DATES: *Effective Date:* This final rule is effective on May 29, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA *-* R03 *-* OAR-2007-1188. All documents in the docket are listed in the *http://www.regulations.gov* Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Delaware Department of Natural Resources & Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903. FOR FURTHER INFORMATION CONTACT: Rose Quinto,
(215)814-2182, or by e-mail at *quinto.rose@epa.gov* . SUPPLEMENTARY INFORMATION: I. Background On March 5, 2008 (73 FR 11845), EPA published a notice of proposed rulemaking
(NPR)for the State of Delaware. The NPR proposed approval of the provisions to control emissions from stationary generators. The formal SIP revision was submitted by the State of Delaware on November 1, 2007. Specific requirements of Delaware's regulation to control emissions from stationary generators and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR. II. Final Action EPA is approving Regulation No. 1144—Control of Stationary Generator Emissions, as a revision to the Delaware SIP. This regulation will help ensure that the air emissions from new and existing generators do not cause or contribute to the existing air quality problems with regard to ground-level ozone and fine particulate matter, thereby adversely impacting public health, safety, and welfare. III. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq* .); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ); • 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); • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, pertaining to Delaware's regulation to control emissions from stationary generators, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Dated: April 15, 2008. William T. Wisniewski, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq* . Subpart I—Delaware 2. In § 52.420, the table in paragraph
(c)is amended by adding entries for Regulation No. 1144—Control of Stationary Generators Emissions at the end of the table to read as follows: § 52.420 Identification of plan.
(c)* * * EPA-Approved Regulations in the Delaware SIP State citation Title/subject State effective date EPA approval date Additional explanation * * * * * * * Regulation No. 1144 Control of Stationary Generator Emissions Section 1.0 General 01/11/06 4/29/08 [Insert page number where the document begins] Section 2.0 Definitions 01/11/06 4/29/08 [Insert page number where the document begins] Section 3.0 Emissions 01/11/06 4/29/08 [Insert page number where the document begins] Section 4.0 Operating Requirements 01/11/06 4/29/08 [Insert page number where the document begins] Section 5.0 Fuel Requirements 01/11/06 4/29/08 [Insert page number where the document begins] Section 6.0 Record Keeping and Reporting 01/11/06 4/29/08 [Insert page number where the document begins] Section 7.0 Emissions Certification, Compliance, and Enforcement 01/11/06 4/29/08 [Insert page number where the document begins] Section 8.0 Credit for Concurrent Emissions Reductions 01/11/06 4/29/08 [Insert page number where the document begins] Section 9.0 DVFA Member Companies 01/11/06 4/29/08 [Insert page number where the document begins] [FR Doc. E8-9262 Filed 4-28-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2007-1068; FRL-8559-6] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Section 110(a)(1) 8-Hour Ozone Maintenance Plan for the White Top Mountain, Smyth County, VA 1-Hour Ozone Nonattainment Area AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a State Implementation Plan
(SIP)revision submitted by the Commonwealth of Virginia. This revision pertains to a 10-year maintenance plan for the White Top Mountain 1-hour ozone nonattainment area located in Smyth County, Virginia. This action is being taken under the Clean Air Act (CAA). DATES: *Effective Date:* This final rule is effective on May 29, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2007-1068. All documents in the docket are listed in the *http://www.regulations.gov* Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: Irene Shandruk,
(215)814-2166, or by e-mail at *shandruk.irene@epa.gov.* SUPPLEMENTARY INFORMATION: I. Background Section 110(a)(1) of the CAA requires that states submit to EPA plans to maintain the NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS. On May 20, 2005, EPA issued guidance that applies to areas that are designated unclassifiable/attainment for the 8-hour ozone standard. The purpose of this guidance is to address the maintenance requirements in section 110(a)(1) of the CAA, and to assist the States in the development of a SIP. The components from EPA's guidance include:
(1)An attainment emissions inventory, which is based on actual “typical summer day” emissions of volatile organic compounds
(VOCs)and nitrogen oxides (NO <sup>X</sup> ) for the 10-year maintenance period, from a base-year chosen by the State;
(2)a maintenance demonstration, which demonstrates how the area will remain in compliance with the 8-hour ozone standard for a period of 10 years following the effective date of designation unclassifiable/attainment (June 15, 2004);
(3)an ambient air monitoring network, which will be in continuous operation in accordance with 40 CFR part 58 to verify maintenance of the 8-hour ozone standard;
(4)a contingency plan, that will ensure that in the event of a violation of the 8-hour ozone NAAQS, measures will be implemented as promptly as possible;
(5)a verification of continued attainment, indicating how the State intends on tracking the progress of the maintenance plan. On February 26, 2008 (73 FR 10201), EPA published a notice of proposed rulemaking
(NPR)for the Commonwealth of Virginia. The NPR proposed approval of a 10-year maintenance plan for the White Top Mountain 1-hour ozone nonattainment area located in Smyth County, Virginia. The formal SIP revision was submitted by the Commonwealth of Virginia on August 6, 2007. Other specific requirements of the 10-year maintenance plan under section 110(a)(1) for the White Top Mountain 1-hour ozone nonattainment area located in Smyth County, Virginia and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR. II. Summary of SIP Revision Virginia has requested approval of a revision consisting of a 10-year maintenance plan under section 110(a)(1) for the White Top Mountain 1-hour ozone nonattainment area located in Smyth County, Virginia. The Virginia Department of Environmental Quality (VADEQ) 8-hour ozone maintenance plan addresses the five components of EPA's May 20, 2005 Guidance, which pertains to the maintenance requirements in section 110(a)(1) of the CAA. III. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information
(1)that are generated or developed before the commencement of a voluntary environmental assessment;
(2)that are prepared independently of the assessment process;
(3)that demonstrate a clear, imminent and substantial danger to the public health or environment; or
(4)that are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.” Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law. IV. Final Action EPA's review of this revision indicates that the Commonwealth of Virginia has addressed the components of a maintenance plan pursuant to EPA's May 20, 2005 guidance, and meets the requirements of section 110(a)(1) of the CAA. EPA is approving the Virginia SIP revision for White Top Mountain, Smyth County, Virginia, which was submitted on August 6, 2007. V. Statutory and Executive Order Reviews A. General Requirements Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq* .); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq* .); • 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); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving Virginia's SIP revision request consisting of a 10-year maintenance plan under section 110(a)(1) for the White Top Mountain 1-hour ozone nonattainment area located in Smyth County, Virginia may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: April 15, 2008. William T. Wisniewski, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart XX—Virginia 2. In § 52.2420, the table in paragraph
(e)is amended by adding an entry for the 8-hour Ozone Maintenance plan for the White Top Mountain, Smyth County, VA 1-hour Ozone Nonattainment Area at the end of the table to read as follows: § 52.2520 Identification of plan.
(e)* * * Name of non-regulatory SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation * * * * * * * Ozone Maintenance Plan White Top Mountain, Smyth County, VA 1-hour Ozone Nonattainment Area 8/6/07 8/29/08. [FR Doc. E8-9266 Filed 4-28-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2007-1091-200813; FRL-8559-1] Approval and Promulgation of Implementation Plans Kentucky: Tennessee Valley Authority Paradise Facility State Implementation Plan Revision AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is taking final action to approve a source specific State Implementation Plan
(SIP)revision submitted on October 19, 2007, by the Commonwealth of Kentucky through the Kentucky Division for Air Quality (KDAQ). This SIP revision supercedes a previous source-specific revision approved by EPA on August 25, 1989, including an equivalency demonstration supporting the redistribution of sulfur dioxide (SO <sup>2</sup> ) emissions from Tennessee Valley Authority's (TVA's) Paradise Steam Plant located in Muhlenburg County, Kentucky. The revision being approved now includes SO <sup>2</sup> limits that are more stringent than the current SIP-approved statewide SO <sup>2</sup> limits for electric generating units (EGUs). Consistent with Kentucky Administrative Regulations
(KAR)approved into the SIP, affected facilities located in Muhlenberg County are subject to an SO <sup>2</sup> emission limit of 3.1 pounds per million British Thermal Units (lbs/mmBTU). The 3.1 lbs/mmBTU limit was approved by EPA on June 24, 1983, as part of Kentucky's control strategy for attaining and maintaining the primary and secondary SO <sup>2</sup> national ambient air quality standard (NAAQS) in Muhlenberg County. This current SIP action will approve a limit of 1.2 lbs/mmBTU for all three units with limited bypass emissions of 3.1 lbs/mmBTU for scrubber maintenance on Unit 3. This revision was proposed for approval on February 5, 2008, and no adverse comments were received. DATES: *Effective Date:* This rule will be effective May 29, 2008. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2007-1091. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Heidi LeSane, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is
(404)562-9074. Ms. LeSane can also be reached via electronic mail at *lesane.heidi@epa.gov* . SUPPLEMENTARY INFORMATION: Background On October 19, 2007, KDAQ submitted to EPA a source-specific SIP revision requesting that the 1989 source-specific redistribution of SO <sup>2</sup> emission limits for TVA Paradise be revised to account for new control technology at the facility. KDAQ proposed that the TVA Paradise facility be subject to specific limits discussed below which are more stringent than Kentucky's SIP-approved KAR, requiring a 3.1 lbs/mmBTU limit. The rationale for the 1989 equivalency determination and redistribution was the lack of control measures (a scrubber) on Unit 3. TVA has now installed a wet scrubber on Unit 3, and as a result, the 1989 redistribution is no longer necessary for the facility to comply with the SIP-approved 401 KAR 61:015. At this time, Units 1 and 2 are equipped with Venturi-type limestone slurry flue gas desulfurization
(FGD)scrubbers, and Unit 3 is equipped with an electrostatic precipitator and a wet limestone FGD scrubber. The facility is now able to meet (and exceed) the requirements of 401 KAR 61:015 without a unit-specific redistribution. The new SO <sup>2</sup> limits are: 1.2 lbs/mmBTU for all three units with a 3.1 lbs/mmBTU limit allowed at Unit 3 for a limited time for scrubber maintenance. This revision is consistent with section 110 of the Clean Air Act
(CAA)because it will continue to provide for attainment and maintenance of the SO <sup>2</sup> NAAQS. EPA proposed this revision for approval on February 5, 2008 (73 FR 6657), and no adverse comments were received. Final Action EPA is taking final action to approve a source-specific SIP revision submitted by KDAQ in October 2007 regarding the SO <sup>2</sup> emission limits for the three units at the TVA Paradise Facility. This action will supersede the 1989 source-specific SIP revision and subject TVA Paradise to emission limits of 1.2 lbs/mmBTU at Units 1, 2, and 3, except that Unit 3 may meet the limit of 3.1 lbs/mmBTU that is established in 401 KAR 61:015 during the limited times when the Unit 3 scrubber is bypassed for maintenance (not to exceed 720 operating hours in a 12-month period). Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves Kentucky law as meeting Federal requirements and does not impose additional requirements beyond those imposed by Kentucky law. For that reason, this action: • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • 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); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the Commonwealth, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. 801 *et seq.,* as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801. Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See, section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Incorporation by reference, Reporting and recordkeeping requirements, Sulfur oxides. Dated: April 17, 2008. Russell L. Wright, Jr., Acting Regional Administrator, Region 4. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart S—Kentucky 2. Section 52.920
(d)is amended: a. By revising the entry for “TVA Paradise Permit,” and b. by adding a new entry at the end of the table for “TVA Paradise Permit” to read as follows: § 52.920 Identification of plan.
(d)* * * EPA-Approved Kentucky Source-Specific Requirements Name of source Permit No. State effective date EPA approval date Explanation * * * * * * * TVA Paradise Permit KDEPDAQ Permit 0-87-012 6/29/87 08/25/89, 54 FR 35326 WITHDRAWN * * * * * * * TVA Paradise Permit KDEPDAQ Permit 0-87-012 10/19/07 4/29/08 [Insert citation of publication] Emission Rates Units 1 and 2 are 1.2 lb/MMBTU and Unit 3 is 1.2 lb/MMBTU or *3.1 lb/MMBTU. * Bypass of the scrubber shall be limited to 720 operating hours in any 12 consecutive months. [FR Doc. E8-9252 Filed 4-28-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2004-WI-0002; FRL-8557-5] Redesignation of the Forest County Potawatomi Community Reservation to a PSD Class I Area; Dispute Resolution with the State of Michigan AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of dispute resolution. SUMMARY: The purpose of this notice is to announce the EPA resolution of an intergovernmental dispute over a request by the Forest County Potawatomi Community (FCP Community) to redesignate portions of the FCP Community reservation as a non-Federal Class I area under the Clean Air Act (CAA or Act) program for Prevention of Significant Deterioration
(PSD)of air quality. On June 8, 1995, the Governors of Wisconsin and Michigan raised concerns about EPA's proposal to approve the request of the FCP Community to redesignate portions of its reservation as a non-Federal Class I area and asked EPA to enter negotiations with the parties to resolve the dispute as provided for in the CAA. The State of Michigan and the FCP Community were unable to reach an agreement concerning the redesignation. After fully considering the concerns raised by the State of Michigan, EPA has determined that it is not proper in these particular circumstances to disapprove the FCP Community's redesignation request. The Class I redesignation is described in a final rulemaking notice also published in this **Federal Register** . The Class I designation will result in lowering the allowable increases in ambient concentrations of particulate matter, sulfur dioxide, and nitrogen oxide within the reservation. DATES: This action is effective on May 29, 2008. FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507; telephone number: 312-886-0671; fax number: 312-886-5824; e-mail address: *blathras.constantine@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. I. General Information A. Does This Action Apply to Me? This action will apply to applicants to the PSD construction permit program on Class I trust lands of the Forest County Potawatomi Community. B. How Can I Get Copies Of This Document and Related Information? 1. *Docket.* EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2004-WI-0002. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the U.S. Environmental Protection Agency, Air Docket, in the EPA Headquarters Library, Room Number 3334 in the EPA West Building, located at 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation will be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. The docket is also available during normal business hours for public inspection and copying at the Air Programs Branch, Region 5, EPA (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604. 2. *Electronic Access.* You may access this **Federal Register** document electronically through the EPA Internet under the ” **Federal Register** ” listings at: *http://www.epa.gov/fedrgstr* . In addition to being available in the docket and on the EPA **Federal Register** Internet Web site, an electronic copy of this notice is also available on the EPA's New Source Review
(NSR)Web site, under Regulations & Standards, ­at *http://www.epa.gov/nsr/actions.html.* C. How is This Notice Organized? The information in this notice is organized as follows: I. General Information A. Does this Action Apply to Me? B. How Can I Get Copies Of This Document and Related Information? C. How is this Notice Organized? II. This Notice A. Area Proposed for Redesignation B. Authority for Invoking Dispute Resolution Procedures C. Agency Action II. This Notice A. Area Proposed for Redesignation On February 14, 1995, the FCP Community submitted a request to the EPA to approve the redesignation of the air quality status of the FCP Community's Reservation from “Class II” to “Class I” under the CAA's PSD regulations. The area of FCP Community reservation lands that has been proposed for redesignation to Class I comprises 10,818 acres, all of which is located in Forest County, Wisconsin. B. Authority for Invoking Dispute Resolution Procedures Section 164(e) of the CAA and 40 CFR 52.21(t) provide the current statutory and regulatory framework for resolving disputes between states and Tribes over redesignation of an area or for permits for new major emitting facilities that may cause or contribute to a cumulative change in air quality under the PSD program. Section 164(e) provides that if the Governor of an affected state or the appropriate Indian Governing Body of an affected Tribe disagrees with a request for redesignation by either party, then the governor or Indian ruling body may request that EPA negotiate with the parties to resolve the dispute. The statute provides that either party can ask the Administrator for a recommendation to resolve the dispute, and if the parties fail to reach an agreement during the negotiations, “the Administrator shall resolve the dispute and his determination, or the results of the agreements reached through other means, shall become part of the applicable plan and shall be enforceable as part of such plan.” Section 164(e), 42 U.S.C. 7474(e). Similarly, if a permit is proposed to be issued for any new major emitting facility proposed for construction in any state which the Governor of an affected state or the governing body of an affected Indian Tribe determines will cause or contribute to a cumulative change in air quality in excess of that allowed within the affected state or reservation, the Governor or Tribal ruling body may invoke the same dispute resolution mechanism. States or Tribes with Class I areas cannot, however, “veto” permits that may adversely affect those areas. In resolving a dispute, the statute directs EPA to “consider the extent to which the lands involved are of sufficient size to allow effective air quality management or have quality related values of such area.” As further discussed in the response to comments concerning the disputed issues, the CAA and its implementing regulations do not contain a minimum size requirement for area redesignation by a state or Tribe, and the size of the redesignated area is relevant only to the extent that it may impact effective air quality management or air quality related values (AQRVs). The Act does not define AQRVs nor identify specific AQRVs other than visibility ( *See* section 165(d)(2)(B) of the Act), but in the legislative history to the Act, AQRVs are described as follows: The term “air quality related values” of Federal lands designated as Class I includes the fundamental purposes for which such lands have been established and preserved by the Congress and the responsible Federal agency. For example, under the 1916 Organic Act to establish the National Park Service (16 U.S.C. 1), the purpose of such national park lands “is to conserve the scenery and the natural historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” C. Agency Action 1. Background on Redesignation Request Pursuant to section 164(c), 42 U.S.C. 7474(c), the FCP Community Tribal Council formally submitted a proposal to redesignate certain FCP Community reservation lands from Class II to Class I to the EPA on February 24, 1995. A Class I air quality designation provides greater protection for air resources by decreasing the increases allowed in the ambient concentrations of particulate matter, sulfur dioxide, and nitrogen oxides from any new major stationary sources or major modifications to existing sources in the vicinity. The types of facilities whose emissions could impact these lower limits are generally new or expanding large industrial sources such as electric utilities and pulp and paper mills. No new operating permits or additional controls would be required for existing sources solely as a result of a Class I designation. Along with reducing allowable concentrations of key pollutants, Class I areas may also include AQRVs which are intended to further protect air quality. In the case of the FCP Community redesignation, the Tribe has proposed acidic and mercury deposition as the AQRVs it is seeking to protect. Because state officials were concerned about AQRVs and other issues, an intergovernmental dispute eventually developed and the parties ultimately sought dispute resolution under section 164(e). By statute, the Agency must approve or disapprove a request for redesignation. Accordingly, on June 29, 1995, EPA published a notice in the **Federal Register**
(FR)proposing to approve the redesignation request by the FCP Community to Class I area status. The notice provided for a 60 day public comment period. However, on June 8, 1995, the Governors of Wisconsin and Michigan sent a joint letter to EPA objecting to EPA's proposal to grant the FCP Community request for redesignation and requesting dispute resolution. The June 8 letter focused on two concerns, first, the states' perception that EPA lacked rules to handle such redesignation requests and the implementation of non-federal Class I areas, and second, that a non-federal Class I area would “significantly infringe upon the ability of our state governments to manage the natural resources of our states.” 1 1 Letter from Governor Tommy G. Thompson and Governor John Engler to Carol Browner, June 8, 1995. To address their concerns, the Agency published a FR notice (60 FR 40139) on August 7, 1995, postponing the scheduled August 2, 1995 public hearing and extending, at the states' request, the public comment period indefinitely while the Agency attempted to negotiate with the states and respond to the issues they had raised. As already noted, section 164(e) of the Act allows either the Governor of a state or the Indian ruling body that disagrees with a proposed redesignation to request the Administrator to enter into negotiations with the parties involved to resolve the dispute. In response to the Governors' letter, EPA contracted with a professional mediation service (RESOLVE, Inc.) to provide mediation services. During 1995, Wisconsin and the FCP Community began work toward developing a Memorandum of Understanding, and invited Michigan to participate in this process. RESOLVE discussed the case with EPA and the parties, and circulated resumes and a list of potential mediators for comment by the parties, but the parties could not agree on a mediator and none was selected. In the meantime, in partial response to the states' request that EPA promulgate rules to address non-federal Class I areas, EPA had formed a senior workgroup to cooperatively develop options for consideration by the states and Tribes regarding roles and responsibilities of non-Federal Class I area managers. To gather public comment on different proposals, EPA published an advanced notice of proposed rulemaking
(ANPR)on May 16, 1997. 62 FR 27158 (May 16, 1997). The EPA held public workshops in Chicago and Phoenix on the ANPR, and gathered testimony on the options for proposed rulemaking. 62 FR 33786 (June 23, 1997). The states had requested that EPA's action of the FCP Community Class I request be delayed until after the Agency could complete this rulemaking, but the rulemaking was not finalized. 2 2 Thompson and Engler to Mary Nichols, February 6, 1977; Russell J. Harding, Director MDEQ, to EPA Air Docket, August 8, 1997. In any case, the States viewed the ANPR as inadequate because “the rulemaking will not address all of our concerns related to Tribal Class I redesignation. The EPA must promulgate adequate rules governing *all aspects of Class I redesignation* before proceeding with a final decision on the Potawatomi or any other Tribal Class I requests (emphasis in original).” From 1995 through 1997, EPA engaged in an extended correspondence with Wisconsin and Michigan regarding the proposed redesignation and how to address both states' concerns, as reflected in the record for this action. Following nearly 2 years of discussions, however, the states and the Tribe had not reached a resolution of the issues that had been raised by the states, nor had EPA completed the public notice process on the proposed redesignation. The issues included for Michigan, in addition to the two concerns discussed above, that the Agency promulgate additional rules to implement the dispute resolution provision at CAA section 164(e), that the Agency impose its own requirement that non-federal Class I areas be limited to those exceeding 5,000 acres in size with specified “uniqueness” criteria, and that the Agency promulgate additional rules to cover all aspects of implementing the requirements of established non-federal Class I area requirements. 3 3 Letter from Russell J. Harding, MDEQ to Carlton Nash, Chief, Regulation Development Section, Region V EPA, September 15, 1997. In the absence of an agreed resolution of either of the states' issues, on July 10, 1997, EPA moved to bring closure to the rulemaking process by publishing a notice for two informational meetings and two public hearings on the FCP Community's redesignation request with a public comment period to close on September 15, 1997. 62 FR 37007 (July 10, 1997). EPA held public hearings on the proposed redesignation on August 12, 1997, in Carter, Wisconsin, and August 13, 1997, in Rhinelander, Wisconsin. By the close of the public comment period, EPA had received more than 120 comments on the proposed redesignation. On April 21, 1998 4 , Wisconsin requested that EPA reinitiate the dispute resolution process under section 164(e). In response, EPA sent letters to the State of Wisconsin, the State of Michigan, and the FCP Community requesting a meeting to begin the negotiations to resolve the dispute. EPA requested that the parties each identify its chief negotiator, and that each party submit a written list of issues that it wished to submit to the dispute resolution process. EPA, in consultation with the parties, requested RESOLVE to select a mediator, and this time, Triangle Associates, Inc., Seattle, Washington, was chosen to mediate the discussions. 4 Letter from Governor Tommy Thompson to Richard Wilson, Acting Assistant Administrator for Air and Radiation. April 21, 1998. EPA requested that the mediator interview each of the parties, discuss the issues submitted by each party, and structure a dispute resolution process tailored to the needs of this dispute. Following the initial interview, the Agency requested an initial meeting of all parties to agree upon a protocol, establish a list of issues appropriate for discussion under section 164(e), and plan a series of further meetings aimed at resolving the dispute. The first dispute resolution meeting occurred on September 2, 1998, at the Region 5 offices in Chicago, Illinois. Both the States of Wisconsin and Michigan participated in this meeting, although Michigan formally announced its participation solely as an “observer.” 5 During this meeting, the states and the Tribe identified issues of concern and attempted to find areas of overlap that could potentially lead to resolution. 5 Letter from [Gary R. Hughes, acting for] Russell J. Harding, Director MEDQ, to David A. Ullrich, Acting Regional Administrator, August 20, 1998. Following this first meeting, the parties requested that EPA examine the twenty-one issues submitted for dispute resolution to determine which would be appropriate for discussion and resolution under section 164(e) of the CAA. EPA Region 5, in consultation with EPA's headquarters offices (Office of Air and Radiation, Office of General Counsel, and Office of Air Quality Planning and Standards), by letter of November 6, 1998, ultimately submitted a list of six suitable topics for further discussion and resolution to the parties. These issues included: “(1) Whether the lands proposed for redesignation are of sufficient size to allow for effective air quality management;
(2)the extent to which the lands proposed for redesignation have sufficient size to have AQRVs;
(3)the off-reservation impacts of redesignation as discussed in the [FCP Community's] Technical Report;
(4)the Tribe's choice of mercury deposition as an AQRV;
(5)the Tribe's choice of AQRVs; and
(6)the roles and responsibilities of the respective parties in the dispute resolution discussion on September 2, 1998.” 6 The Agency also informed the parties that the remaining issues were either unsuitable for discussion under the CAA section 164(e), or where wholly within EPA's purview as a decision maker under CAA section 164(b) and 164(e). 6 Letter from Stephen Rothblatt, Acting Director, Air and Radiation Division, Region 5, to George E. Meyer, Secretary WDNR, and Joseph Young, attorney for FCP, November 6, 1998 (cc to Denis Drake, MDEQ). On November 16, 1998, the Tribe and the State of Wisconsin held a second dispute resolution meeting in Green Bay, Wisconsin, but the State of Michigan elected not to participate in this meeting. Following several meetings, Wisconsin and the Tribe reached an agreement that resolved their dispute. The parties circulated the final agreement for signature, and the EPA Region 5 Regional Administrator concurred on the agreement on October 12, 1999. Consistent with CAA section 164(e), the terms of the agreement constitute the resolution of the dispute between Wisconsin and the Tribe. However, after observing the first dispute resolution session on September 2, 1998, the State of Michigan did not participate in any of the other dispute resolution sessions between the State of Wisconsin and the FCP Community. Triangle Associates, Inc. continued to keep Michigan abreast of the dispute resolution proceedings by forwarding the minutes of each negotiating session to the state. Believing that the negotiations with Michigan had reached an impasse, on August 4, 1999, the Forest County Potawatomi Vice-Chairman contacted EPA in writing to request that the Administrator resolve the dispute with the State of Michigan under section 164(e). On December 22, 1999, the MDEQ sent a letter to EPA requesting a meeting between the FCP Community and Michigan as a continuation of the dispute resolution Michigan had invoked under section 164(e), stating that while the state still considered all of the issues it had previously raised to be unresolved, “in the interest of resolving this matter, I request that [EPA] begin a negotiation with the FCP Community and the State of Michigan, as a continuation of the dispute resolution process, and in an effort to address the comments and resolve the objections previously forwarded by the State of Michigan.” 7 7 Letter from Russell J. Harding, MDEQ to Stephen Rothblatt, Acting Director, Air and Radiation Division, Region 5, December 22, 1999. On April 25, 2000, Michigan submitted a list of twelve issues for discussion in the new round of dispute negotiations, which corresponded to issues previously raised by the state. 8 On June 23, 2000, the FCP Community submitted a letter to EPA responding to Michigan's request for dispute negotiations. The EPA set up a meeting between Michigan, the FCP Community, and EPA on January 9, 2001, in Chicago, Illinois. The parties exchanged initial draft proposed principles for resolution of the dispute negotiation. After reviewing their respective proposed principles, the parties could not reach an agreement. On February 12, 2001, the FCP Community submitted a letter to EPA requesting an EPA determination to resolve the dispute and adopt the FCP Community proposal as the final determination. On February 23, 2001, EPA sent a letter to both parties requesting that they submit to EPA their positions on the dispute negotiation and their proposals for resolution. On March 16, 2001, Michigan submitted its position on the section 164(e) resolution to EPA, reiterating the two central concerns originally identified in the joint-states' letter of June 8, 1995:
(1)Lack of formally promulgated rules, and
(2)potential impact of Class I area on state's air program management. The letter concluded “if the EPA's final action does not impose any additional obligations upon Michigan's air program and does not subject Michigan air use permits to section 164(e) dispute resolution review, the need for Michigan to request review by the U.S. Sixth Circuit Court of Appeals of the designation of FCP Community lands may be obviated.” 9 On March 19, 2001, the FCP Community submitted its position on the section 164(e) resolution to EPA. 8 Letter from Russell J. Harding, MDEQ to Stephen Rothblatt, Acting Director, Air and Radiation Division, Region 5, April 25, 2000. 9 Letter from Russell J. Harding, MDEQ to Stephen Rothblatt, Acting Director, Air and Radiation Division, Region 5, March 16, 2001. On February 3, 2003, the FCP Community contacted EPA to request that the Agency's actions on the rulemaking be suspended for a 90-day period to allow the Tribe to attempt a bilateral negotiation with the State of Michigan's new administration. EPA encouraged the parties to meet and offered to reinitiate the dispute resolution process with the third-party mediator should the parties request this. On February 14, 2003, MDEQ responded that it would participate in bilateral discussions, but considered these outside the scope of the CAA section 164(e) dispute resolution process. 10 These discussions failed to produce an agreement, and in November 2003, the Tribe requested that EPA move forward with the rulemaking request. 11 Although EPA provided updates for the states and Tribe on the progress of completing the rulemaking process, there was no further resolution of the issues raised by Michigan by the time EPA published the proposed FIP in December 2006. 10 Letter from Steven E. Chester, Director MDEQ, to Al Milham, Vice Chairman, FCP Community, February 14, 2003. 11 Letter from Al Milham, Vice Chairman, FCP Community to Steve Rothblatt, Director, Air and Radiation Division, Region 5, November 24, 2003. 2. EPA's Decision Regarding the Dispute Resolution Between the FCP Community and the State of Michigan Michigan submitted extensive comments opposing the proposed Federal Implementation Plan
(FIP)and reiterating its concerns regarding the redesignation. It objected to EPA's proposal to implement the redesignation through a FIP, to the validity of the agreement between Wisconsin and the Tribe, and to approving the redesignation before completing a rulemaking proposed in August 2006. See Proposed Rule: Review of New Sources and Modifications in Indian Country, 71 FR 48696 (August 21, 2006). However, none of these comments provide a legally supportable basis for denying the redesignation. The CAA gives EPA only a very limited role in reviewing a redesignation request. As a general rule, EPA can “disapprove the redesignation of any area only if [it] finds, after notice and opportunity for public hearing, that such redesignation does not meet the procedural requirements” in CAA section 164(b) and 40 CFR 52.21. “Once these procedural requirements are met, EPA must approve the request for redesignation.” *Administrator, State of Arizona* v. *EPA,* 151 F.3d 1205, 1211 (9th Cir. 1998), hereafter *Arizona* v. *EPA.* EPA cannot “re-weigh the effects of a proposed redesignation or second-guess a tribe's decision to redesignate its reservation lands.” *Id.* at 1212. Where a neighboring state or tribe disagrees with the proposed redesignation of an area, section 164(e) provides a narrow exception to that general rule of limited EPA review. EPA believes that where there is a dispute, it must consider whether to resolve the dispute by disapproving the redesignation, based on the factors identified in 164(e). If EPA resolves the dispute in favor of the party requesting redesignation, the dispute is terminated, and the only remaining question is whether the Tribe met the procedural requirements of 164(b)(2). Because that inquiry involves only procedural adequacy, when EPA conducts that second inquiry, it cannot consider any information relating to any matter other than procedure, even if that information was considered in the dispute resolution. Consistent with that, EPA is treating this dispute resolution separately from the approval of the redesignation request and is publishing the two separately. In resolving a dispute over redesignation under 164(e), EPA “must consider the extent to which the lands involved are of sufficient size to allow effective air quality management or have air quality related values.” *Arizona* v. *EPA* , construing CAA section 164(e). EPA recognizes that this language requires EPA to consider the size of a reservation in resolving a dispute. Consistent with that, in a previous dispute, EPA rejected a state's claim that reservation lands consisting of five noncontiguous parcels totaling 632 acres, with the smallest having 3.7594 acres should be disapproved; EPA found that the areas in question “were not too small to allow effective air quality management or to have air quality related values.” *Arizona* v. *EPA* (citing EPA finding with approval). In this dispute, the state has not seriously argued that the lands the Tribe has requested for redesignation were too small “to allow effective air quality management or have air quality related values.” 12 Nevertheless, the statute directs EPA to consider that subject. 12 The State's arguments regarding size have centered on the State's complaints that EPA has not unilaterally adopted regulations that impose minimum acreage requirements of 5,000 acres on non-federal class I areas. See for example, Russell Harding to Carlton Nash, September 15, 1997, at 4; Letter from Russell Harding to Stephen Rothblatt, April 25, 2000. In its decision to grant the Class I redesignation request for the Yavapai-Apache reservation, EPA examined whether it would be difficult to perform a PSD air quality modeling analysis that assessed the impacts of a proposed source in such a situation. The EPA concluded that, based on the modeling tools available at that time, it would be relatively simple and practicable for a proposed source to project its impact on the Class I area parcels and evaluate the analysis. *See* 61 FR at 56457-56458. Moreover, current air quality planning and management tools have become increasingly sophisticated and refined and apply to a variety of area sizes and configurations, ranging from a single facility to large metropolitan areas. For example, EPA, in coordination with states has established nonattainment areas in states for the purpose of implementing nonattainment planning requirements for the lead National Ambient Air Quality Standards (NAAQS) that encompass areas of only a few square kilometers. *See* e.g., 40 CFR 81.310 and 40 CFR 81.311. Conversely, there is an ozone transport region under the CAA for the purpose of ozone nonattainment planning that spans from Maine to northern Virginia. *See* section 184(a) of the CAA. Thus, EPA is reluctant to establish rigid criteria regarding the geographic size, geographic orientation, or population size of a Class I area that would automatically disqualify certain Tribes (or states) from exercising the authority conferred under section 164(c) to redesignate lands within Reservations. *Arizona* v. *EPA* . EPA believes it can evaluate the size of the lands in the proposed redesignation area based upon the Agency's experience in the Yavapai-Apache redesignation and other air quality planning requirements. EPA also notes that it is expected to use caution in reversing redesignation requests in resolving disputes. 61 FR at 56454-56455, (citing CAA Legislative History, vol 3 at 326). The lands in this parcel are similar to the lands in Yavapai in containing noncontiguous parcels of various sizes. However, the lands here are many times larger, with a total acreage in excess of 10,000 acres, compared with the 632 acres in Yavapai, and with the smallest parcel being 80 acres, more than twenty times larger than the 3.7594 acre parcel in Yavapai. EPA recognizes the limits of fact matching, and does not believe that comparing acreage is necessarily dispositive in all cases. Nevertheless, it believes that based on both the result and the rationale in *Arizona* v. *EPA,* it has no basis for disapproving the redesignation based on size. EPA concludes that the size of the lands is not too small to allow effective air quality management or have AQRVs. EPA must also consider whether it can consider any other factors, and, if so, how to do so. While 164(e) directs EPA to consider size in resolving a dispute, it does not mention other factors to consider, or discuss what discretion EPA may have with regard to considering other factors at all. EPA believes that the mandatory language directing EPA to consider whether the proposed redesignation lands “are of sufficient size to allow air effective air quality management or have air quality related values” clearly establishes size as the preeminent factor in resolving disputes. EPA also believes that the references to “effective air quality management” and “air quality related values” indicates that those factors, too, may be relevant in some circumstances, to the appropriate resolution of a dispute. Thus, for example, where EPA concludes that some other factor besides size precludes effective air quality management, it may have some limited authority to resolve a dispute by disapproving a redesignation because effective air quality management is impossible. EPA construes the reference to AQRVs in conjunction with a second use of the term in 164(e), providing that, if the parties so request, “EPA shall make a recommendation to resolve the dispute *and* protect the air quality related values of the land involved.” 164(e) (emphasis added). Thus, EPA believes that it has limited discretion to consider protection of AQRVs in resolving a dispute, and that in some circumstances, it may resolve a dispute by denying a redesignation where approving the redesignation would not be consistent with protecting AQRVs. In sum, EPA has carefully considered the record in this case, and concludes it is not appropriate to deny the redesignation based on the size of the proposed area. EPA also concludes that the record does not show that the redesignation would preclude effective air quality management or be inconsistent with protecting AQRVs. EPA, therefore, resolves the dispute by rejecting the state's suggestion to deny the redesignation. EPA's approval decision is discussed in a separate notice. EPA also notes that it does not agree with the State of Michigan comment that additional rulemaking should be proposed before EPA can resolve the dispute or approve the redesignation. The statutes that govern this decision, sections 164(b)(2) and 164(e) contain no limitations on EPA's redesignation authority of the type Michigan suggests. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides, Volatile organic compounds. Dated: April 18, 2008. Stephen L. Johnson, Administrator. [FR Doc. E8-8969 Filed 4-28-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2004-WI-0002;FRL-8557-4] Redesignation of the Forest County Potawatomi Community Reservation to a PSD Class I Area; Dispute Resolution With the State of Wisconsin AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of dispute resolution. SUMMARY: The purpose of this notice is to announce the resolution of an intergovernmental dispute over a request by the Forest County Potawatomi Community (FCP Community) to redesignate portions of the FCP Community reservation as a non-Federal Class I area under the Clean Air Act (CAA or Act) program for prevention of significant deterioration of air quality. On June 8, 1995, the Governors of Wisconsin and Michigan raised concerns about EPA's proposal to approve the request of the FCP Community to redesignate portions of its reservation as a non-Federal Class I area and asked EPA to initiate the intergovernmental dispute resolution process provided for in the CAA. The State of Wisconsin and the FCP Community were able to reach an agreement concerning the redesignation. After considering the final agreement signed by the FCP Community and the State of Wisconsin, EPA finds that this agreement resolves the dispute and no further action is required by EPA. In a separate rulemaking published in this **Federal Register** , EPA is finalizing its proposed decision to redesignate the FCP Community as a non-Federal Class I area. The Class I designation will result in lowering the allowable increases in ambient concentrations of particulate matter, sulfur dioxide, and nitrogen oxide within the reservation. DATES: This action is effective on May 29, 2008. FOR FURTHER INFORMATION CONTACT: Constantine Blathras, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3507; telephone number: 312-886-0671; fax number: 312-886-5824; e-mail address: *blathras.constantine@epa.go* v. SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. I. General Information A. Does This Action Apply to Me? This action will apply to applicants to the Prevention of Significant Deterioration
(PSD)construction permit program on Class I trust lands of the Forest County Potawatomi Community. B. How Can I Get Copies of This Document and Related Information? 1. *Docket.* EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2004-WI-0002. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the U.S. Environmental Protection Agency, Air Docket, in the EPA Headquarters Library, Room Number 3334 in the EPA West Building, located at 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation will be 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. The docket is also available during normal business hours for public inspection and copying at the Air Programs Branch, Region 5, EPA (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604. 2. *Electronic Access.* You may access this **Federal Register** document electronically through the EPA Internet under the **Federal Register** listings at: *http://www.epa.gov/fedrgstr* /. In addition to being available in the docket and on the EPA **Federal Register** Internet Web site, an electronic copy of this notice is also available on the EPA's New Source Review
(NSR)Web site, under Regulations & Standards, at *http://www.epa.gov/nsr/actions.html* . C. How Is This Notice Organized? The information in this notice is organized as follows: I. General Information A. Does This Action Apply to Me? B. How Can I Get Copies of This Document and Related Information? C. How Is this Notice Organized? II. This Notice A. Area Proposed for Redesignation B. Authority for Invoking Dispute Resolution Procedures C. Agency Action II. This Notice A. Area Proposed for Redesignation On February 14, 1995, the FCP Community submitted a request to the EPA to approve the redesignation of the air quality status of selected parcels of the FCP Community's Reservation from “Class II” to “Class I” under the CAA's PSD regulations. The area of FCP Community reservation lands that has been proposed for redesignation to Class I comprises 10,818 acres, all of which is located in Forest County, Wisconsin. B. Authority for Invoking Dispute Resolution Procedures Section 164(e) of the CAA and 40 CFR 52.21(t) provide the current statutory and regulatory framework for resolving disputes between states and Tribes over redesignation of an area or for permits for new major emitting facilities that may cause or contribute to a cumulative change in air quality under the PSD program. Section 164(e) of the CAA provides that if the Governor of an affected state or the appropriate Indian Governing Body of an affected Tribe disagrees with a request for redesignation by either party, then the governor or Indian ruling body may request that EPA negotiate with the parties to resolve the dispute. Pursuant to the statute and implementing regulations, EPA is not a party to the dispute. The Administrator of EPA is, by statute, designated as the final arbitrator of the dispute. The statute provides that either party can ask the Administrator for a recommendation to resolve the dispute, and if the parties fail to reach an agreement during the negotiations, “the Administrator shall resolve the dispute and his determination, or the results of the agreements reached through other means, shall become part of the applicable plan and shall be enforceable as part of such plan.” Section 164(e), 42 U.S.C. 7474(e). Similarly, if a permit is proposed to be issued for any new major emitting facility proposed for construction in any state, which the Governor of an affected state or the governing body of an affected Indian Tribe determines will cause or contribute to a cumulative change in air quality in excess of that allowed within the affected state or reservation, the Governor or Tribal ruling body may invoke the same dispute resolution mechanism. States or Tribes with Class I areas, however, cannot “veto” permits that may adversely affect those areas. While EPA has authority to resolve disputes, this authority is exercised only if the parties in dispute do not reach an agreement during the dispute resolution process. A discussion of EPA's authorities to resolve disputes is found in EPA's notice resolving the dispute between the State of Michigan and the FCP Community, published in this **Federal Register** . Where, as here, in the case of Wisconsin and the FCP Community, the parties reached their own resolution of their issues, EPA believes that the agreement becomes part of the “applicable plan” and the dispute is ended. 42 U.S.C. 7474(e). C. Agency Action 1. Background on Redesignation Request Pursuant to section 164(c), 42 U.S.C. 7474(c), the FCP Community Tribal Council formally submitted a proposal to redesignate certain FCP Community reservation lands from Class II to Class I to the EPA on February 24, 1995. A Class I air quality designation provides greater protection for air resources by decreasing the increases allowed in the ambient concentrations of particulate matter, sulfur dioxide, and nitrogen oxides from any new major stationary sources or major modifications to existing sources in the vicinity. The types of facilities whose emissions could impact these lower limits are generally new or expanding large industrial sources such as electric utilities and pulp and paper mills. No new operating permits or additional controls would be required for existing sources solely as a result of a Class I designation. Along with reducing allowable concentrations of key pollutants, Class I areas may also include air quality related values
(AQRV)which are intended to further protect air quality. In the case of the FCP Community redesignation, the Tribe has proposed acidic and mercury deposition as the AQRVs they are seeking to protect. Because state officials were concerned about AQRVs and other issues, an intergovernmental dispute eventually developed and the parties ultimately sought dispute resolution under section 164(e). By statute, the Agency must approve or disapprove a request for redesignation. Accordingly, on June 29, 1995, EPA published a notice in the **Federal Register**
(FR)proposing to approve the redesignation request by the FCP Community to Class I area status. The notice provided for a 60-day public comment period. However, on June 8, 1995, the Governors of Wisconsin and Michigan sent a letter to EPA objecting to EPA's proposal to grant the FCP Community request for redesignation and requesting dispute resolution. The June 8 letter focused on two concerns, first, the states' perception that EPA lacked rules to handle such redesignation requests and the implementation of non-federal Class I areas, and second, that a non-federal class I area would “significantly infringe upon the ability of our state governments to manage the natural resources of our states.” 1 1 Letter from Governor Tommy G. Thompson and Governor John Engler to Carol Browner, June 8, 1995. To address their concerns, the Agency published a FR notice (60 FR 40139) on August 7, 1995, postponing the scheduled August 2, 1995 public hearing and extending at the states' request the public comment period indefinitely, while the Agency attempted to negotiate with the states and respond to the issues they had raised. As already noted, section 164(e) of the Act allows either the Governor of a state or the Indian ruling body to request to the Administrator to enter into negotiations with the parties involved to resolve such a dispute. In response to the Governors' letter, EPA contracted with a professional mediation service (RESOLVE, Inc.) to provide mediation services. RESOLVE discussed the case with EPA and the parties, and circulated resumes and a list of potential mediators for comment by the parties. In the meantime, EPA had formed a senior EPA workgroup to cooperatively develop options for consideration by the states and Tribes regarding roles and responsibilities of non-Federal class I area managers. To gather public comment on different proposals, EPA published an advanced notice of proposed rulemaking
(ANPR)on May 16, 1997. 62 FR 27158. EPA held public workshops in Chicago and Phoenix on the ANPR, and gathered testimony on the options for proposed rulemaking. 62 FR 33786 (June 23, 1997). The ANPR was not finalized however, and no new regulations were established. In further follow-up to the Wisconsin and Michigan Governor's letters invoking dispute resolution, EPA engaged in an extended correspondence with Wisconsin and Michigan regarding the relationship of the proposed redesignation to proposed rulemaking, which can be found in the record for this notice. Following nearly 2 years of discussions, however, the states and the Tribe had not reached a resolution of the issues that had been raised by the states, nor had EPA completed the public notice process on the proposed redesignation. Therefore, on July 10, 1997, EPA published notice for two informational meetings and public hearings on the FCP Community's redesignation request and established a close for the public comment period of September 15, 1997. 62 FR 37007 (July 10, 1997). EPA held two public hearings on the proposed redesignation on August 12, 1997, in Carter, Wisconsin, and August 13, 1997, in Rhinelander, Wisconsin, respectively. By the close of the public comment period, EPA had received more than 120 comments on the proposed redesignation. On April 21, 1998 2 , Wisconsin requested that EPA reinitiate the dispute resolution process under section 164(e). In response, EPA sent letters to the State of Wisconsin, the State of Michigan, and the FCP Community requesting a meeting to begin the negotiations to resolve the dispute. EPA requested that the parties each identify their chief negotiator, and that each party submit a written list of issues that they wished to resolve through the dispute resolution process. EPA, in consultation with the parties, requested RESOLVE to select a mediator, and Triangle Associates, Inc., Seattle, Washington, was chosen to mediate the discussions. 2 Letter from Governor Tommy Thompson to Richard Wilson, Acting Assistant Administrator for Air and Radiation, April 21, 1998. Once a mutually acceptable mediator had been agreed upon, EPA requested that the mediator establish a formal process for conducting compilation of issues, organizing and structuring meetings, and communication among the parties. 3 This included interviews with each of the parties, discussions of the issues lists submitted by each party, and structuring a series of meetings. Following an initial interview, the Agency requested a meeting of all parties to agree upon a protocol, establish a list of issues appropriate for discussion under section 164(e), and plan a series of further meetings aimed at resolving the dispute. 3 The public docket for this rulemaking contains documents relating to the dispute resolution process except those that are covered by privilege, such as the federal Alternative Dispute Resolution Act. Privileged documents are listed in the index, though have not been made available to the public. The first dispute resolution meeting occurred on September 2, 1998, at the Region 5 offices in Chicago, Illinois. Both the States of Wisconsin and Michigan participated in this meeting, and states and Tribe each identified issues of concern and attempted to find areas of overlap that could potentially lead to resolution. Following this first meeting, the parties requested that EPA examine the twenty-one issues submitted for dispute resolution to determine which would be appropriate for discussion and resolution under section 164(e) of the CAA. EPA Region 5, in consultation with EPA's headquarters offices (Office of Air and Radiation, Office of General Counsel, and Office of Air Quality Planning and Standards), by letter of November 6, 1998, ultimately submitted to the parties a list of six suitable topics for further discussion and resolution. These issues included: “(1) Whether the lands proposed for redesignation are of sufficient size to allow for effective air quality management;
(2)the extent to which the lands proposed for redesignation have sufficient size to have air quality related values;
(3)the off-reservation impacts of redesignation as discussed in the [FCP Community's] Technical Support Document;
(4)the Tribe's choice of mercury deposition as an AQRV;
(5)the Tribe's choice of AQRVs; and
(6)the roles and responsibilities of the respective parties in the dispute resolution discussion on September 2, 1998.” 4 The Agency also informed the parties that the remaining issues were either unsuitable for discussion under the CAA section 164(e), or where wholly within EPA's purview as decision maker under CAA section 164(b) and 164(e). 4 Letter from Stephen Rothblatt, Acting Director, Air and Radiation Division, Region 5, to George E. Meyer, Secretary WDNR, and Joseph Young, attorney for FCP, November 6, 1998 (cc to Denis Drake, MDEQ). On November 16, 1998, the parties held a second dispute resolution meeting in Green Bay, Wisconsin. However, the State of Michigan elected not to participate in this meeting. 5 During the second meeting, the parties discussed each of the six issues, with each party having the opportunity to raise their specific concerns. The State of Wisconsin and FCP Community exchanged ideas for achieving a mutually acceptable resolution, which addressed both parties' concerns. The parties scheduled another negotiating session for December. 5 The State of Michigan did not participate in any subsequent dispute resolution meetings between Wisconsin and the FCP. The Administrator's resolution of the dispute between the State of Michigan and the FCP Community is concurrently published in a separate FR notice. On December 22, 1998, the parties met in Milwaukee, Wisconsin. As a result of further discussions which took place at this meeting, the parties developed a draft negotiation concept paper. The parties, as well as EPA, agreed to seek concurrence from their respective boards and governing bodies. The parties agreed that sufficient progress had been made towards resolving the dispute to warrant another meeting in February 1999. The parties held another dispute resolution meeting on the FCP Community reservation in Carter, Wisconsin on February 3, 1999. During this meeting, the parties developed specific language that they wished to include in a draft agreement in principle. After review by both parties, as well as by EPA, the lead negotiators for the State of Wisconsin, the FCP Community, and EPA signed the agreement, signifying their good faith intent to seek concurrence from their respective authorities and management. EPA was not a party to the dispute, and its role was to acknowledge the parties' agreement. Following the development of the agreement in principle document, a drafting team comprised of representatives of the parties and from EPA began developing the detailed terms of the final agreement. On April 8, 1999, the parties held a meeting to work out the language of the final agreement. After each of the parties, as well as EPA, had an opportunity to review and comment on the draft of the final agreement, the parties agreed that another drafting session would be necessary. The parties, together with EPA, held a final conference call to complete the draft final agreement on June 7, 1999. 2. The FCP Community and the State of Wisconsin Memorandum of Agreement The 1999 Memorandum of Agreement between the FCP Community and the State of Wisconsin (FCP Community-Wisconsin MOA) fully resolves the dispute between the state and the Tribe concerning the FCP Community's request for Class I redesignation of its reservation lands. The Class I Final Agreement provides a framework for establishing how the state and FCP Community will implement the Class I area under their respective authorities. The provisions of this agreement become effective upon EPA's final action to approve the FCP Community's request for Class I redesignation, as published in a separate final rule in the **Federal Register** . While EPA also was a signatory to this agreement, EPA's role in the process was to acknowledge the agreement entered into by the parties on their own respective authorities. 3. Effect of the FCP Community and State of Wisconsin Memorandum of Agreement on the Wisconsin State Implementation Plan
(SIP)CAA section 164(e) provides that “the results of the agreements reached through other means, shall become part of the applicable plan and shall be enforceable as part of such plan.” CAA section 164(e), 42 U.S.C. 7474(e). The PSD program is implemented in Wisconsin under an EPA approved State Implementation Plan
(SIP)which excludes all of Indian country within the state. The terms of the FCP Community-Wisconsin MOA do not apply to the effects of the Class I redesignation on the redesignated area, and thus are not appropriate for inclusion in the Federal Implementation Plan
(FIP)EPA is issuing in a concurrent rulemaking, located in this **Federal Register** publication. Rather, the agreement establishes certain special provisions regarding the effects of the Class I redesignation on potential sources outside the redesignated area. These provisions will need to be implemented by revising the Wisconsin SIP and have been summarized by EPA as follows in the December 18, 2006, **Federal Register** proposal: [T]he agreement between the FCP Community and Wisconsin subjects all major sources in Wisconsin located within a ten
(10)mile radius of any redesignated Tribal land to performing an increment analysis and to meeting consumption requirements applicable to a Class I area. Major sources located outside of ten
(10)miles are subject to increment analysis and consumption requirements applicable to any redesignated Tribal land as if it were a Class II area. Also under the agreement, all major sources within sixty-two
(62)miles are subject to an analysis of their impact on AQRVs of the redesignated Tribal lands to determine if they will have an adverse impact on these AQRVs. 71 FR 75696. As these special provisions differ from Wisconsin's currently approved SIP for the PSD program, for this portion of the FCP Community-Wisconsin MOA to become enforceable will require revision of the Wisconsin SIP, which otherwise would not recognize a limitation of the area in which the Class I increment analysis must be conducted. EPA takes the position that it generally will not interfere with the agreements reached between Tribes and states through the CAA's 164(e) dispute resolution process. However, to the extent that the agreement reached under the terms of the MOA allows for restricting the requirements normally associated with Class I areas, as these apply to sources located outside a 10-mile radius of the redesignated reservation lands, EPA takes the position that a revision of the Wisconsin SIP will be necessary to implement this provision to potential sources located outside boundaries of the redesignated parcels. In the absence of such modification to the Wisconsin SIP, the current PSD rules codified at 40 CFR Part 52 will apply to the FCP Community's Class I area as approved in EPA's final action published in this **Federal Register** . List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and record keeping requirements, Sulfur dioxides, Volatile organic compounds. Dated: April 18, 2008. Stephen L. Johnson, Administrator. [FR Doc. E8-8970 Filed 4-28-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 55 [OAR-2004-0091; FRL-8542-3] Outer Continental Shelf Air Regulations Consistency Update for California AGENCY: Environmental Protection Agency (“EPA”). ACTION: Final rule—consistency update. SUMMARY: EPA is finalizing the updates of the Outer Continental Shelf (“OCS”) Air Regulations proposed in the **Federal Register** on November 16, 2007. Requirements applying to OCS sources located within 25 miles of states' seaward boundaries must be updated periodically to remain consistent with the requirements of the corresponding onshore area (“COA”), as mandated by section 328(a)(1) of the Clean Air Act Amendments of 1990 (“the Act”). The portions of the OCS air regulations that are being updated pertain to the requirements for OCS sources for which the Santa Barbara County Air Pollution Control District, South Coast Air Quality Management District, and Ventura County Air Pollution Control District are the designated COA. The intended effect of approving the requirements contained in “Santa Barbara County Air Pollution Control District Requirements Applicable to OCS Sources” (December, 2007), “South Coast Air Quality Management District Requirements Applicable to OCS Sources” (Parts I, II and III) (December, 2007), and “Ventura County Air Pollution Control District Requirements Applicable to OCS Sources” (December, 2007) is to regulate emissions from OCS sources in accordance with the requirements onshore. DATES: *Effective Date:* This rule is effective on May 29, 2008. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of May 29, 2008. ADDRESSES: EPA has established docket number OAR-2004-0091 for this action. The index to the docket is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Cynthia Allen, Air Division, U.S. EPA Region IX,
(415)947-4120, *allen.cynthia@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Public Comment III. EPA Action IV. Administrative Requirements A. Executive Order 12866, Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132, Federalism F. Executive Order 13175, Coordination With Indian Tribal Governments G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Congressional Review Act K. Petitions for Judicial Review I. Background Throughout this document, the terms “we”, “us,” and “our” refer to U.S. EPA. On November 16, 2007 (72 FR 64563), EPA proposed to approve requirements into the OCS Air Regulations pertaining to Santa Barbara County APCD, South Coast AQMD, and Ventura County APCD. These requirements are being promulgated in response to the submittal of rules from these California air pollution control agencies. EPA has evaluated the proposed requirements to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards or Part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure that they are not arbitrary or capricious. 40 CFR 55.12(e). In addition, EPA has excluded administrative or procedural rules. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's state implementation plan
(SIP)guidance or certain requirements of the Act. Consistency updates may result in the inclusion of state or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP. II. Public Comments EPA's proposed action provided a 30-day public comment period. During this period, we received no comments on the proposed action. III. EPA Action In this document, EPA takes final action to incorporate the proposed changes into 40 CFR part 55. No changes were made to the proposed action. EPA is approving the proposed action under section 328(a)(1) of the Act, 42 U.S.C. 7627. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into Part 55 as they exist onshore. IV. Administrative Requirements A. Executive Order 12866, Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (“OMB”) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: 1. Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; 2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; 3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or 4. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB Review. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have created an adverse material effect. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA. B. Paperwork Reduction Act The OMB has approved the information collection requirements contained in 40 CFR part 55, and by extension this update to the rules, under the provisions of the *Paperwork Reduction Act* , 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0249. Notice of OMB's approval of EPA Information Collection Request (“ICR”) No. 1601.06 was published in the **Federal Register** on March 1, 2006 (71 FR 10499-10500). The approval expires January 31, 2009. As EPA previously indicated (70 FR 65897-65898 (November 1, 2005)), the annual public reporting and recordkeeping burden for collection of information under 40 CFR part 55 is estimated to average 549 hours per response. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable. In addition, EPA is amending the table in 40 CFR part 9 of currently approved OMB control numbers for various regulations to list the regulatory citations for the information requirements contained in this final rule. C. Regulatory Flexibility Act The Regulatory Flexibility Act (“RFA”) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This rule will not have a significant economic impact on a substantial number of small entities. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have had a significant economic impact on a substantial number of small entities. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare written statements, 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 of more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector that may result in expenditures of $100 million or more for State, local, or tribal governments, in the aggregate, or to the private sector in any one year. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have created an adverse material effect. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA. E. Executive Order 13132, Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255 (August 10, 1999)), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. This rule does not amend the existing provisions within 40 CFR part 55 enabling delegation of OCS regulations to a COA, and this rule does not require the COA to implement the OCS rules. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175, 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.” This final rule 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 and thus does not have “tribal implications,” within the meaning of Executive Order 13175. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. In addition, this rule does not impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Consultation with Indian tribes is therefore not required under Executive Order 13175. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885 (April 23, 1997)), applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866. In addition, the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportional risk to children. H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use This final rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable laws 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. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decided not to use available and applicable voluntary consensus standards. As discussed above, this rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this final rule simply updates the existing OCS rules to make them consistent with current COA requirements. In the absence of a prior existing requirement for the state to use voluntary consensus standards and in light of the fact that EPA is required to make the OCS rules consistent with current COA requirements, it would be inconsistent with applicable law for EPA to use voluntary consensus standards in this action. Therefore, EPA is not considering the use of any voluntary consensus standards. J. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective May 29, 2008. K. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 30, 2008. Filing a petition for reconsideration by the Administrator of this final action does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)) List of Subjects in 40 CFR Part 55 Environmental protection, Administrative practice and procedures, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Nitrogen oxides, Outer Continental Shelf, Ozone, Particulate matter, Permits, Reporting and Recordkeeping requirements, Sulfur oxides. Dated: December 28, 2007. Laura Yoshii, Acting Regional Administrator, Region IX. 40 CFR part 55 is amended as follows: PART 55—[AMENDED] 1. The authority citation for part 55 continues to read as follows: Authority: Section 328 of the Clean Air Act (42 U.S.C. 7401, et seq.) as amended by Public Law 101-549. 2. Section 55.14 is amended by revising paragraphs (e)(3)(ii)(F),
(G)and
(H)to read as follows: § 55.14 Requirements that apply to OCS sources located within 25 miles of states seaward boundaries, by state.
(e)* * *
(3)* * *
(ii)* * *
(F)*Santa Barbara County Air Pollution Control District Requirements Applicable to OCS Sources* , December 2007.
(G)*South Coast Air Quality Management District Requirements Applicable to OCS Sources* (Part I, II and Part III), December 2007.
(H)*Ventura County Air Pollution Control District Requirements Applicable to OCS Sources,* December 2007. 3. Appendix A to CFR part 55 is amended by revising paragraphs (b)(6), (7), and
(8)under the heading “California” to read as follows: Appendix A to Part 55—Listing of State and Local Requirements Incorporated by Reference Into Part 55, by State California
(b)* * *
(6)The following requirements are contained in *Santa Barbara County Air Pollution Control District Requirements Applicable to OCS Sources:* Rule 102 Definitions (Adopted 01/20/05) Rule 103 Severability (Adopted 10/23/78) Rule 106 Notice to Comply for Minor Violations (Repealed 01/01/2001) Rule 107 Emergencies (Adopted 04/19/01) Rule 201 Permits Required (Adopted 04/17/97) Rule 202 Exemptions to Rule 201 (Adopted 03/17/05) Rule 203 Transfer (Adopted 04/17/97) Rule 204 Applications (Adopted 04/17/97) Rule 205 Standards for Granting Permits (Adopted 04/17/97) Rule 206 Conditional Approval of Authority To Construct or Permit To Operate (Adopted 10/15/91) Rule 207 Denial of Application (Adopted 10/23/78) Rule 210 Fees (Adopted 03/17/05) Rule 212 Emission Statements (Adopted 10/20/92) Rule 219 Equipment Not Requiring a Written Permit Pursuant to Regulation II (Adopted 6/1/07) Rule 301 Circumvention (Adopted 10/23/78) Rule 302 Visible Emissions (Adopted 10/23/78) Rule 304 Particulate Matter—Northern Zone (Adopted 10/23/78) Rule 305 Particulate Matter Concentration—Southern Zone (Adopted 10/23/78) Rule 306 Dust and Fumes—Northern Zone (Adopted 10/23/78) Rule 307 Particulate Matter Emission Weight Rate—Southern Zone (Adopted 10/23/78) Rule 308 Incinerator Burning (Adopted 10/23/78) Rule 309 Specific Contaminants (Adopted 10/23/78) Rule 310 Odorous Organic Sulfides (Adopted 10/23/78) Rule 311 Sulfur Content of Fuels (Adopted 10/23/78) Rule 312 Open Fires (Adopted 10/02/90) Rule 316 Storage and Transfer of Gasoline (Adopted 04/17/97) Rule 317 Organic Solvents (Adopted 10/23/78) Rule 318 Vacuum Producing Devices or Systems—Southern Zone (Adopted 10/23/78) Rule 321 Solvent Cleaning Operations (Adopted 09/18/97) Rule 322 Metal Surface Coating Thinner and Reducer (Adopted 10/23/78) Rule 323 Architectural Coatings (Adopted 11/15/01) Rule 324 Disposal and Evaporation of Solvents (Adopted 10/23/78) Rule 325 Crude Oil Production and Separation (Adopted 07/19/01) Rule 326 Storage of Reactive Organic Compound Liquids (Adopted 01/18/01) Rule 327 Organic Liquid Cargo Tank Vessel Loading (Adopted 12/16/85) Rule 328 Continuous Emission Monitoring (Adopted 10/23/78) Rule 330 Surface Coating of Metal Parts and Products (Adopted 01/20/00) Rule 331 Fugitive Emissions Inspection and Maintenance (Adopted 12/10/91) Rule 332 Petroleum Refinery Vacuum Producing Systems, Wastewater Separators and Process Turnarounds (Adopted 06/11/79) Rule 333 Control of Emissions from Reciprocating Internal Combustion Engines (Adopted 04/17/97) Rule 342 Control of Oxides of Nitrogen (NO <sup>X</sup> from Boilers, Steam Generators and Process Heaters) (Adopted 04/17/97) Rule 343 Petroleum Storage Tank Degassing (Adopted 12/14/93) Rule 344 Petroleum Sumps, Pits, and Well Cellars (Adopted 11/10/94) Rule 346 Loading of Organic Liquid Cargo Vessels (Adopted 01/18/01) Rule 352 Natural Gas-Fired Fan-Type Central Furnaces and Residential Water Heaters (Adopted 09/16/99) Rule 353 Adhesives and Sealants (Adopted 08/19/99) Rule 359 Flares and Thermal Oxidizers (Adopted 06/28/94) Rule 360 Emissions of Oxides of Nitrogen From Large Water Heaters and Small Boilers (Adopted 10/17/02) Rule 370 Potential To Emit—Limitations for Part 70 Sources (Adopted 06/15/95) Rule 505 Breakdown Conditions Sections A.,B.1., and D. Only (Adopted 10/23/78) Rule 603 Emergency Episode Plans (Adopted 06/15/81) Rule 702 General Conformity (Adopted 10/20/94) Rule 801 New Source Review (Adopted 04/17/97) Rule 802 Nonattainment Review (Adopted 04/17/97) Rule 803 Prevention of Significant Deterioration (Adopted 04/17/97) Rule 804 Emission Offsets (Adopted 04/17/97) Rule 805 Air Quality Impact Analysis and Modeling (Adopted 04/17/97) Rule 808 New Source Review for Major Sources of Hazardous Air Pollutants (Adopted 05/20/99) Rule 1301 Part 70—Operating Permits—General Information (Adopted 06/19/03) Rule 1302 Part 70—Operating Permits—Permit Application (Adopted 11/09/93) Rule 1303 Part 70—Operating Permits—Permits (Adopted 11/09/93) Rule 1304 Part 70—Operating Permits—Issuance, Renewal, Modification and Reopening (Adopted 11/09/93) Rule 1305 Part 70—Operating Permits—Enforcement (Adopted 11/09/93)
(7)The following requirements are contained in *South Coast Air Quality Management District Requirements Applicable to OCS Sources* (Part I, II and III): Rule 102 Definition of Terms (Adopted 12/3/04) Rule 103 Definition of Geographical Areas (Adopted 01/9/76) Rule 104 Reporting of Source Test Data and Analyses (Adopted 01/9/76) Rule 108 Alternative Emission Control Plans (Adopted 04/6/90) Rule 109 Recordkeeping for Volatile Organic Compound Emissions (Adopted 08/18/00) Rule 112 Definition of Minor Violation and Guidelines for Issuance of Notice To Comply (Adopted 11/13/98) Rule 118 Emergencies (Adopted 12/07/95) Rule 201 Permit To Construct (Adopted 12/03/04) Rule 201.1 Permit Conditions in Federally Issued Permits to Construct (Adopted 12/03/04) Rule 202 Temporary Permit To Operate (Adopted 12/03/04) Rule 203 Permit To Operate (Adopted 12/03/04) Rule 204 Permit Conditions (Adopted 03/6/92) Rule 205 Expiration of Permits To Construct (Adopted 01/05/90) Rule 206 Posting of Permit To Operate (Adopted 01/05/90) Rule 207 Altering or Falsifying of Permit (Adopted 01/09/76) Rule 208 Permit and Burn Authorization for Open Burning (Adopted 12/21/01) Rule 209 Transfer and Voiding of Permits (Adopted 01/05/90) Rule 210 Applications (Adopted 01/05/90) Rule 212 Standards for Approving Permits (Adopted 12/07/95) except (c)(3) and
(e)Rule 214 Denial of Permits (Adopted 01/05/90) Rule 217 Provisions for Sampling and Testing Facilities (Adopted 01/05/90) Rule 218 Continuous Emission Monitoring (Adopted 05/14/99) Rule 218.1 Continuous Emission Monitoring Performance Specifications (Adopted 05/14/99) Rule 218.1 Attachment A—Supplemental and Alternative CEMS Performance Requirements (Adopted 05/14/99) Rule 219 Equipment Not Requiring a Written Permit Pursuant to Regulation II (Adopted 6/1/07) Rule 220 Exemption—Net Increase in Emissions (Adopted 08/07/81) Rule 221 Plans (Adopted 01/04/85) Rule 301 Permitting and Associated Fees (Adopted 5/4/07) Except (e)(7) and Table IV Rule 304 Equipment, Materials, and Ambient Air Analyses (Adopted 5/4/07) Rule 304.1 Analyses Fees (Adopted 5/4/07) Rule 305 Fees for Acid Deposition (Rescinded 6/9/06) Rule 306 Plan Fees (Adopted 5/4/07) Rule 309 Fees for Regulation XVI (Adopted 5/4/07) Rule 401 Visible Emissions (Adopted 11/09/01) Rule 403 Fugitive Dust (Adopted 06/03/05) Rule 404 Particulate Matter—Concentration (Adopted 02/07/86) Rule 405 Solid Particulate Matter—Weight (Adopted 02/07/86) Rule 407 Liquid and Gaseous Air Contaminants (Adopted 04/02/82) Rule 408 Circumvention (Adopted 05/07/76) Rule 409 Combustion Contaminants (Adopted 08/07/81) Rule 429 Start-Up and Shutdown Exemption Provisions for Oxides of Nitrogen (Adopted 12/21/90) Rule 430 Breakdown Provisions,
(a)and
(b)Only (Adopted 07/12/96) Rule 431.1 Sulfur Content of Gaseous Fuels (Adopted 06/12/98) Rule 431.2 Sulfur Content of Liquid Fuels (Adopted 09/15/00) Rule 431.3 Sulfur Content of Fossil Fuels (Adopted 05/7/76) Rule 441 Research Operations (Adopted 05/7/76) Rule 442 Usage of Solvents (Adopted 12/15/00) Rule 444 Open Burning (Adopted 12/21/01) Rule 463 Organic Liquid Storage (Adopted 05/06/05) Rule 465 Refinery Vacuum-Producing Devices or Systems (Adopted 08/13/99) Rule 468 Sulfur Recovery Units (Adopted 10/08/76) Rule 473 Disposal of Solid and Liquid Wastes (Adopted 05/07/76) Rule 474 Fuel Burning Equipment—Oxides of Nitrogen (Adopted 12/04/81) Rule 475 Electric Power Generating Equipment (Adopted 08/07/78) Rule 476 Steam Generating Equipment (Adopted 10/08/76) Rule 480 Natural Gas Fired Control Devices (Adopted 10/07/77) Addendum to Regulation IV (Effective 1977) Rule 518 Variance Procedures for Title V Facilities (Adopted 08/11/95) Rule 518.1 Permit Appeal Procedures for Title V Facilities (Adopted 08/11/95) Rule 518.2 Federal Alternative Operating Conditions (Adopted 12/21/01) Rule 701 Air Pollution Emergency Contingency Actions (Adopted 06/13/97) Rule 702 Definitions (Adopted 07/11/80) Rule 708 Plans (Rescinded 09/08/95) Regulation IX Standard of Performance For New Stationary Sources (Adopted 4/6/07) Reg. X National Emission Standards for Hazardous Air Pollutants (NESHAPS) (Adopted 12/2/05) Rule 1105.1 Reduction of PM <sup>10</sup> And Ammonia Emissions From Fluid Catalytic Cracking Units (Adopted 11/07/03) Rule 1106 Marine Coating Operations (Adopted 01/13/95) Rule 1107 Coating of Metal Parts and Products (Adopted 1/6/06) Rule 1109 Emissions of Oxides of Nitrogen for Boilers and Process Heaters in Petroleum Refineries (Adopted 08/05/88) Rule 1110 Emissions From Stationary Internal Combustion Engines (Demonstration) (Repealed 11/14/97) Rule 1110.1 Emissions From Stationary Internal Combustion Engines (Rescinded 06/03/05) Rule 1110.2 Emissions from Gaseous- and Liquid Fueled Engines (Adopted 06/03/05) Rule 1113 Architectural Coatings (Adopted 6/9/06) Rule 1116.1 Lightering Vessel Operations-Sulfur Content of Bunker Fuel (Adopted 10/20/78) Rule 1121 Control of Nitrogen Oxides From Residential-Type Natural Gas-Fired Water Heaters (Adopted 09/03/04) Rule 1122 Solvent Degreasers (Adopted 10/01/04) Rule 1123 Refinery Process Turnarounds (Adopted 12/07/90) Rule 1125 Metal Container, Closure, and Coil Coating Operations (Adopted 01/13/95) Rule 1129 Aerosol Coatings (Adopted 03/08/96) Rule 1132 Further Control of VOC Emissions From High-Emitting Spray Booth Facilities (Adopted 5/5/06) Rule 1134 Emissions of Oxides of Nitrogen From Stationary Gas Turbines (Adopted 08/08/97) Rule 1136 Wood Products Coatings (Adopted 06/14/96) Rule 1137 PM <sup>10</sup> Emission Reductions From Woodworking Operations (Adopted 02/01/02) Rule 1140 Abrasive Blasting (Adopted 08/02/85) Rule 1142 Marine Tank Vessel Operations (Adopted 07/19/91) Rule 1146 Emissions of Oxides of Nitrogen From Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters (Adopted 11/17/00) Rule 1146.1 Emission of Oxides of Nitrogen From Small Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters (Adopted 05/13/94) Rule 1146.2 Emissions of Oxides of Nitrogen from Large Water Heaters and Small Boilers (Adopted 5/5/06) Rule 1148 Thermally Enhanced Oil Recovery Wells (Adopted 11/05/82) Rule 1149 Storage Tank Cleaning And Degassing (Adopted 07/14/95) Rule 1162 Polyester Resin Operations (Adopted 7/8/05) Rule 1168 Adhesive and Sealant Applications (Adopted 01/07/05) Rule 1171 Solvent Cleaning Operations (Adopted 7/14/06) Rule 1173 Control of Volatile Organic Compounds Leaks and Releases From Components at Petroleum Facilities and Chemical Plants (Adopted 6/1/07) Rule 1176 VOC Emissions From Wastewater Systems (Adopted 09/13/96) Rule 1178 Further Reductions of VOC Emissions From Storage Tanks at Petroleum Facilities (Adopted 4/7/06) Rule 1301 General (Adopted 12/07/95) Rule 1302 Definitions (Adopted 12/06/02) Rule 1303 Requirements (Adopted 12/06/02) Rule 1304 Exemptions (Adopted 06/14/96) Rule 1306 Emission Calculations (Adopted 12/06/02) Rule 1313 Permits To Operate (Adopted 12/07/95) Rule 1403 Asbestos Emissions From Demolition/Renovation Activities (Adopted 11/3/06) Rule 1470 Requirements for Stationary Diesel-Fueled Internal Combustion and Other Compression Ignition Engines (Adopted 6/1/07) Rule 1605 Credits for the Voluntary Repair of On-Road Motor Vehicles Identified Through Remote Sensing Devices (Adopted 10/11/96) Rule 1610 Old-Vehicle Scrapping (Adopted 2/12/99) Rule 1612 Credits for Clean On-Road Vehicles (Adopted 07/10/98) Rule 1612.1 Mobile Source Credit Generation Pilot Program (Adopted 03/16/01) Rule 1620 Credits for Clean Off-Road Mobile Equipment (Adopted 07/10/98) Rule 1701 General (Adopted 08/13/99) Rule 1702 Definitions (Adopted 08/13/99) Rule 1703 PSD Analysis (Adopted 10/07/88) Rule 1704 Exemptions (Adopted 08/13/99) Rule 1706 Emission Calculations (Adopted 08/13/99) Rule 1713 Source Obligation (Adopted 10/07/88) Regulation XVII Appendix (effective 1977) Rule 1901 General Conformity (Adopted 09/09/94) Regulation XX Regional Clean Air Incentives Market (Reclaim) Rule 2000 General (Adopted 05/06/05) Rule 2001 Applicability (Adopted 05/06/05) Rule 2002 Allocations for Oxides of Nitrogen (NO <sup>X</sup> ) and Oxides of Sulfur
(SOx)(Adopted 01/07/05) Rule 2004 Requirements (Adopted 4/6/07) except
(l)Rule 2005 New Source Review for RECLAIM (Adopted 05/06/05) except
(i)Rule 2006 Permits (Adopted 05/11/01) Rule 2007 Trading Requirements (Adopted 4/6/07) Rule 2008 Mobile Source Credits (Adopted 10/15/93) Rule 2009 Compliance Plan for Power Producing Facilities (Adopted 01/07/05) Rule 2010 Administrative Remedies and Sanctions (Adopted 4/6/07) Rule 2011 Requirements for Monitoring, Reporting, and Recordkeeping for Oxides of Sulfur
(SOx)Emissions (Adopted 05/06/05) Appendix A Volume IV—(Protocol for Oxides of sulfur) (Adopted 05/06/05) Rule 2012 Requirements for Monitoring, Reporting, and Recordkeeping for Oxides of Nitrogen (NO <sup>X</sup> ) Emissions (Adopted 05/06/05) Appendix A Volume V—(Protocol for Oxides of Nitrogen) (Adopted 05/06/05) Rule 2015 Backstop Provisions (Adopted 06/04/04) except (b)(1)(G) and (b)(3)(B) Rule 2020 RECLAIM Reserve (Adopted 05/11/01) Rule 2100 Registration of Portable Equipment (Adopted 07/11/97) Rule 2506 Area Source Credits for NO <sup>X</sup> and SO <sup>X</sup> (Adopted 12/10/99) XXX Title V Permits Rule 3000 General (Adopted 11/14/97) Rule 3001 Applicability (Adopted 11/14/97) Rule 3002 Requirements (Adopted 11/14/97) Rule 3003 Applications (Adopted 03/16/01) Rule 3004 Permit Types and Content (Adopted 12/12/97) Rule 3005 Permit Revisions (Adopted 03/16/01) Rule 3006 Public Participation (Adopted 11/14/97) Rule 3007 Effect of Permit (Adopted 10/08/93) Rule 3008 Potential To Emit Limitations (Adopted 03/16/01) XXXI Acid Rain Permit Program (Adopted 02/10/95)
(8)The following requirements are contained in *Ventura County Air Pollution Control District Requirements Applicable to OCS Sources* : Rule 2 Definitions (Adopted 04/13/04) Rule 5 Effective Date (Adopted 04/13/04) Rule 6 Severability (Adopted 11/21/78) Rule 7 Zone Boundaries (Adopted 06/14/77) Rule 10 Permits Required (Adopted 04/13/04) Rule 11 Definition for Regulation II (Adopted 03/14/06) Rule 12 Applications for Permits (Adopted 06/13/95) Rule 13 Action on Applications for an Authority To Construct (Adopted 06/13/95) Rule 14 Action on Applications for a Permit to Operate (Adopted 06/13/95) Rule 15.1 Sampling and Testing Facilities (Adopted 10/12/93) Rule 16 BACT Certification (Adopted 06/13/95) Rule 19 Posting of Permits (Adopted 05/23/72) Rule 20 Transfer of Permit (Adopted 05/23/72) Rule 23 Exemptions From Permits (Adopted 09/12/06) Rule 24 Source Recordkeeping, Reporting, and Emission Statements (Adopted 09/15/92) Rule 26 New Source Review—General (Adopted 03/14/06) Rule 26.1 New Source Review—Definitions (Adopted 11/14/06) Rule 26.2 New Source Review—Requirements (Adopted 05/14/02) Rule 26.3 New Source Review—Exemptions (Adopted 03/14/06) Rule 26.6 New Source Review—Calculations (Adopted 03/14/06) Rule 26.8 New Source Review—Permit To Operate (Adopted 10/22/91) Rule 26.10 New Source Review—PSD (Adopted 01/13/98) Rule 26.11 New Source Review—ERC Evaluation At Time of Use (Adopted 05/14/02) Rule 26.12 Federal Major Modifications (Adopted 06/27/06) Rule 28 Revocation of Permits (Adopted 07/18/72) Rule 29 Conditions on Permits (Adopted 03/14/06) Rule 30 Permit Renewal (Adopted 04/13/04) Rule 32 Breakdown Conditions: Emergency Variances, A., B.1., and D. only. (Adopted 02/20/79) Rule 33 Part 70 Permits—General (Adopted 09/12/06) Rule 33.1 Part 70 Permits—Definitions (Adopted 09/12/06) Rule 33.2 Part 70 Permits—Application Contents (Adopted 04/10/01) Rule 33.3 Part 70 Permits—Permit Content (Adopted 09/12/06) Rule 33.4 Part 70 Permits—Operational Flexibility (Adopted 04/10/01) Rule 33.5 Part 70 Permits—Time frames for Applications, Review and Issuance (Adopted 10/12/93) Rule 33.6 Part 70 Permits—Permit Term and Permit Reissuance (Adopted 10/12/93) Rule 33.7 Part 70 Permits—Notification (Adopted 04/10/01) Rule 33.8 Part 70 Permits—Reopening of Permits (Adopted 10/12/93) Rule 33.9 Part 70 Permits—Compliance Provisions (Adopted 04/10/01) Rule 33.10 Part 70 Permits—General Part 70 Permits (Adopted 10/12/93) Rule 34 Acid Deposition Control (Adopted 03/14/95) Rule 35 Elective Emission Limits (Adopted 11/12/96) Rule 36 New Source Review—Hazardous Air Pollutants (Adopted 10/06/98) Rule 42 Permit Fees (Adopted 04/10/07) Rule 44 Exemption Evaluation Fee (Adopted 09/10/96) Rule 45 Plan Fees (Adopted 06/19/90) Rule 45.2 Asbestos Removal Fees (Adopted 08/04/92) Rule 47 Source Test, Emission Monitor, and Call-Back Fees (Adopted 06/22/99) Rule 50 Opacity (Adopted 04/13/04) Rule 52 Particulate Matter—Concentration (Grain Loading)(Adopted 04/13/04) Rule 53 Particulate Matter—Process Weight (Adopted 04/13/04) Rule 54 Sulfur Compounds (Adopted 06/14/94) Rule 56 Open Burning (Adopted 11/11/03) Rule 57 Incinerators (Adopted 01/11/05) Rule 57.1 Particulate Matter Emissions from Fuel Burning Equipment (Adopted 01/11/05) Rule 62.7 Asbestos—Demolition and Renovation (Adopted 09/01/92) Rule 63 Separation and Combination of Emissions (Adopted 11/21/78) Rule 64 Sulfur Content of Fuels (Adopted 04/13/99) Rule 67 Vacuum Producing Devices (Adopted 07/05/83) Rule 68 Carbon Monoxide (Adopted 04/13/04) Rule 71 Crude Oil and Reactive Organic Compound Liquids (Adopted 12/13/94) Rule 71.1 Crude Oil Production and Separation (Adopted 06/16/92) Rule 71.2 Storage of Reactive Organic Compound Liquids (Adopted 09/26/89) Rule 71.3 Transfer of Reactive Organic Compound Liquids (Adopted 06/16/92) Rule 71.4 Petroleum Sumps, Pits, Ponds, and Well Cellars (Adopted 06/08/93) Rule 71.5 Glycol Dehydrators (Adopted 12/13/94) Rule 72 New Source Performance Standards
(NSPS)(Adopted 09/13/05) Rule 73 National Emission Standards for Hazardous Air Pollutants (NESHAPS (Adopted 09/13/05) Rule 74 Specific Source Standards (Adopted 07/06/76) Rule 74.1 Abrasive Blasting (Adopted 11/12/91) Rule 74.2 Architectural Coatings (Adopted 11/13/01) Rule 74.6 Surface Cleaning and Degreasing (Adopted 11/11/03—effective 07/01/04) Rule 74.6.1 Batch Loaded Vapor Degreasers (Adopted 11/11/03—effective 07/01/04) Rule 74.7 Fugitive Emissions of Reactive Organic Compounds at Petroleum Refineries and Chemical Plants (Adopted 10/10/95) Rule 74.8 Refinery Vacuum Producing Systems, Waste-Water Separators and Process Turnarounds (Adopted 07/05/83) Rule 74.9 Stationary Internal Combustion Engines (Adopted 11/08/05) Rule 74.10 Components at Crude Oil Production Facilities and Natural Gas Production and Processing Facilities (Adopted 03/10/98) Rule 74.11 Natural Gas-Fired Residential Water Heaters—Control of NO <sup>X</sup> (Adopted 04/09/85) Rule 74.11.1 Large Water Heaters and Small Boilers (Adopted 09/14/99) Rule 74.12 Surface Coating of Metal Parts and Products (Adopted 11/11/03) Rule 74.15 Boilers, Steam Generators and Process Heaters (Adopted 11/08/94) Rule 74.15.1 Boilers, Steam Generators and Process Heaters (Adopted 06/13/00) Rule 74.16 Oil Field Drilling Operations (Adopted 01/08/91) Rule 74.20 Adhesives and Sealants (Adopted 01/11/05) Rule 74.23 Stationary Gas Turbines (Adopted 1/08/02) Rule 74.24 Marine Coating Operations (Adopted 11/11/03) Rule 74.24.1 Pleasure Craft Coating and Commercial Boatyard Operations (Adopted 01/08/02) Rule 74.26 Crude Oil Storage Tank Degassing Operations (Adopted 11/08/94) Rule 74.27 Gasoline and ROC Liquid Storage Tank Degassing Operations (Adopted 11/08/94) Rule 74.28 Asphalt Roofing Operations (Adopted 05/10/94) Rule 74.30 Wood Products Coatings (Adopted 06/27/06) Rule 75 Circumvention (Adopted 11/27/78) Rule 101 Sampling and Testing Facilities (Adopted 05/23/72) Rule 102 Source Tests (Adopted 04/13/04) Rule 103 Continuous Monitoring Systems (Adopted 02/09/99) Rule 154 Stage 1 Episode Actions (Adopted 09/17/91) Rule 155 Stage 2 Episode Actions (Adopted 09/17/91) Rule 156 Stage 3 Episode Actions (Adopted 09/17/91) Rule 158 Source Abatement Plans (Adopted 09/17/91) Rule 159 Traffic Abatement Procedures (Adopted 09/17/91) Rule 220 General Conformity (Adopted 05/09/95) Rule 230 Notice To Comply (Adopted 11/09/99) [FR Doc. E8-9092 Filed 4-28-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. The Assistant Administrator of the Mitigation Directorate has resolved any appeals resulting from this notification. This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act.* This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This final rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This final rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: Flooding source(s) Location of referenced elevation *Elevation in feet
(NGVD)+Elevation in feet
(NAVD)#Depth in feet above ground Modified Communities affected Henderson County, North Carolina, and Incorporated Areas Docket No.: FEMA-D-7808 Allen Branch At the confluence with Clear Creek +2,081 Unincorporated Areas of Henderson County, City of Hendersonville. Approximately 200 feet upstream of Luther Capell Lane +2,183 Bat Fork Creek At the confluence with Mud Creek +2,082 Unincorporated Areas of Henderson County, City of Hendersonville. Approximately 200 feet upstream of U.S. 176 +2,159 Battle Creek At the downstream side of U.S. 64 +2,069 Unincorporated Areas of Henderson County. Approximately 0.4 mile upstream of Battle Creek Road (State Road 1211) +2,082 Big Willow Creek Approximately 0.4 mile upstream of the confluence with French Broad River +2,081 Unincorporated Areas of Henderson County. At the confluence of South Fork Big Willow Creek and North Fork Big Willow Creek +2,081 Big Willow Creek Tributary 1 Approximately 1,200 feet upstream of the confluence with Big Willow Creek +2,104 Unincorporated Areas of Henderson County. Approximately 40 feet upstream of Lakeshore Drive +2,109 Boylston Creek Approximately 50 feet downstream of Banner Farm Road +2,072 Town of Mills River. Approximately 230 feet upstream of Turkey Pen Gap Road +2,190 Boylston Creek Tributary 7 At the confluence with Boylston Creek +2,103 Unincorporated Areas of Henderson County, Town of Mills River. Approximately 1,090 feet upstream of Cross Creek Court +2,128 Britton Creek At the confluence with Mud Creek +2,081 Unincorporated Areas of Henderson County, City of Hendersonville. Approximately 90 feet upstream of Mistletoe Trail +2,284 Britton Creek Tributary 2 At the confluence with Britton Creek +2,082 Unincorporated Areas of Henderson County, City of Hendersonville. Approximately 150 feet upstream of Stonebrook Drive (State Road 2050) +2,154 Broad River At the Henderson/Rutherford County boundary +1,411 Unincorporated Areas of Henderson County. At the Buncombe/Henderson County boundary +1,719 Cane Creek Approximately 100 feet upstream of I-26 +2,062 Unincorporated Areas of Henderson County, Town of Fletcher. Approximately 800 feet upstream of the Henderson/Buncombe County boundary +2,094 Clear Creek At the confluence with Mud Creek +2,078 Unincorporated Areas of Henderson County. Approximately 1.0 mile upstream of Apple Valley Road (State Road 1572) +2,171 Devils Fork At the confluence with Bat Fork Creek +2,083 Unincorporated Areas of Henderson County, City of Hendersonville. At Old Dana Road (State Road 1738) +2,135 Dunn Creek At the confluence with Bat Fork Creek +2,099 Unincorporated Areas of Henderson County, City of Hendersonville. Approximately 570 feet upstream of Howard Gap Road (State Road 1006) +2,144 Featherstone Creek At the confluence with Mud Creek +2,069 Unincorporated Areas of Henderson County. Approximately 240 feet upstream of Locust Grove Road (State Road 1528) +2,253 Finley Creek At the confluence with Shepherd Creek +2,131 Unincorporated Areas of Henderson County. Approximately 1,980 feet upstream of Old Kanuga Road (State Road 1138) +2,146 Gash Creek Approximately 400 feet downstream of Etowah School Road (State Road 1205) +2,081 Unincorporated Areas of Henderson County. Approximately 1,250 feet upstream of U.S. 64 +2,101 Green River At the Henderson/Polk County boundary +1,442 Unincorporated Areas of Henderson County. Approximately 300 feet upstream of Bear Paw Ridge Road +2,166 Henderson Creek At the confluence with Clear Creek +2,118 Unincorporated Areas of Henderson County. Approximately 1,240 feet upstream of Pace Road (State Road 1726) +2,146 Hickory Creek (near Gerton) At the confluence with Broad River +1,483 Unincorporated Areas of Henderson County. Approximately 320 feet upstream of Boulder Lane +3,652 Higgins Branch At the confluence with Kimsey Creek +2,062 Town of Fletcher. Approximately 1,820 feet upstream of Birkshire Way +2,178 Hoopers Creek At the confluence with Cane Creek +2,074 Unincorporated Areas of Henderson County, Town of Fletcher. Approximately 30 feet downstream of Lindsey Loop Road (State Road 1571) +2,181 Kimsey Creek Approximately 50 feet upstream of U.S. 74 +2,062 Unincorporated Areas of Henderson County, Town of Fletcher. Approximately 1,880 feet upstream of Kimzey Creek Drive +2,155 King Creek At the confluence with Bat Fork Creek +2,084 Unincorporated Areas of Henderson County, City of Hendersonville, Village of Flat Rock. Approximately 0.5 mile upstream of West Blue Ridge Road (State Road 1812) +2,178 King Creek Tributary 3 At the confluence with King Creek +2,099 Unincorporated Areas of Henderson County, City of Hendersonville, Village of Flat Rock. Approximately 210 feet upstream of Rutledge Drive (State Road 1166) +2,171 Kyles Creek At the confluence with Clear Creek +2,118 Unincorporated Areas of Henderson County. Approximately 140 feet downstream of Terrys Gap Road (State Road 1565) +2,187 Lanning Mill Creek At the confluence with Kyles Creek +2,176 Unincorporated Areas of Henderson County. Approximately 800 feet upstream of the confluence with Kyles Creek +2,187 Lewis Creek At the confluence with Clear Creek +2,126 Unincorporated Areas of Henderson County. Approximately 80 feet downstream of Pilot Mountain Road (State Road 1783) +2,169 Little Willow Creek At Pleasant Grove Road (State Road 1191) +2,083 Unincorporated Areas of Henderson County. Approximately 1.6 miles upstream of the confluence with French Broad River +2,113 Mill Pond Creek Approximately 175 feet upstream of Hysong Lane +2,075 Unincorporated Areas of Henderson County. Approximately 0.4 mile upstream of Mountain Road (State Road 1381) +2,202 Mills River Approximately 0.6 mile upstream of Hooper Lane (State Road 1353) +2,063 Town of Mills River. At the confluence of North Fork Mills River and South Fork Mills River +2,119 Mud Creek Approximately 1.4 miles upstream of the confluence with French Broad River +2,062 Unincorporated Areas of Henderson County, City of Hendersonville, Town of Fletcher, Village of Flat Rock. Approximately 300 feet upstream of Walnut Cove Road (State Road 1125) +2,161 North Fork Big Willow Creek At the confluence with Big Willow Creek +2,081 Unincorporated Areas of Henderson County. Approximately 0.5 mile upstream of the confluence with Big Willow Creek +2,099 North Fork Mills River At the confluence with Mills River +2,119 Unincorporated Areas of Henderson County, Town of Mills River. Approximately 1.3 miles upstream of Rush Branch Road +2,259 Perry Creek At the confluence with Shepherd Creek +2,131 Unincorporated Areas of Henderson County. Approximately 1,530 feet upstream of Price Road (State Road 1137) +2,147 Piney Branch At the confluence with South Fork Big Willow Creek +2,082 Unincorporated Areas of Henderson County. Approximately 0.8 mile upstream of Big Willow Road (State Road 1191) +2,218 Reedypatch Creek At the confluence with Broad River +1,461 Unincorporated Areas of Henderson County. Approximately 540 feet upstream of Bald Rock Road (State Road 1710) +2,176 Rock Creek (into Green River) At the confluence with Green River +2,067 Unincorporated Areas of Henderson County. Approximately 0.5 mile upstream of Green River Road (State Road 1106) +2,103 Shaw Creek At the downstream side of U.S. 64 +2,069 Unincorporated Areas of Henderson County. Approximately 1,400 feet upstream of Turley Falls Road (State Road 1215) +2,122 Shepherd Creek At South Lakeside Drive (State Road 1148) +2,126 Unincorporated Areas of Henderson County. At the confluence of Perry Creek and Finley Creek +2,131 South Fork Big Willow Creek At the confluence with Big Willow Creek +2,081 Unincorporated Areas of Henderson County. Approximately 1,810 feet upstream of Patterson Road (State Road 1194) +2,103 South Fork Mills River At the confluence with Mills River +2,119 Unincorporated Areas of Henderson County, Town of Mills River. Approximately 3.2 miles upstream of Dalton Road (State Road 1340) +2,258 South Wash Creek At the confluence with Wash Creek +2,153 Town of Laurel Park. Approximately 50 feet downstream of Lake Drive +2,217 Tonys Creek At the confluence with Shepherd Creek +2,126 Unincorporated Areas of Henderson County, Town of Laurel Park. Approximately 0.5 mile upstream of Willow Road (State Road 1171) +2,201 Wash Creek Approximately 400 feet upstream of the confluence with Mud Creek +2,091 Unincorporated Areas of Henderson County, City of Hendersonville, Town of Laurel Park. Approximately 330 feet upstream of Railroad +2,202 Wolfpen Creek Approximately 500 feet upstream of the confluence with Clear Creek +2,091 Unincorporated Areas of Henderson County, City of Hendersonville. Approximately 90 feet upstream of Chestnut Gap Road (State Road 1742) +2,130 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Hendersonville Maps are available for inspection at Hendersonville City Hall, 145 Fifth Avenue East, Hendersonville, North Carolina. Town of Fletcher Maps are available for inspection at Fletcher Town Hall, 4005 Hendersonville Road, Fletcher, North Carolina. Town of Laurel Park Maps are available for inspection at Laurel Park Town Hall, 441 White Pine Drive, Laurel Park, North Carolina. Town of Mills River Maps are available for inspection at Mills River Town Hall, 5046 Boylston Highway, Suite 3, Mills River, North Carolina. Unincorporated Areas of Henderson County Maps are available for inspection at Henderson County Administration Building, 100 North King Street, Hendersonville, North Carolina. Village of Flat Rock Maps are available for inspection at Flat Rock Village Hall, 110 Village Center Drive, Flat Rock, North Carolina. McDowell County, North Carolina, and Incorporated Areas Docket No.: FEMA-D-7668 Alexander Branch At the confluence with South Muddy Creek +1,137 Unincorporated Areas of McDowell County. Approximately 0.8 mile upstream of the confluence with South Muddy Creek +1,174 Armstrong Creek At the confluence with North Fork Catawba River +1,382 Unincorporated Areas of McDowell County. At the confluence of House Branch +1,959 Bakers Creek At the confluence with Second Broad River +1,026 Unincorporated Areas of McDowell County. Approximately 1.3 miles upstream of the Railroad +1,153 Beaverdam Branch At the confluence with Second Broad River +1,270 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of State Route 1148 +1,311 Betsy Creek At the confluence with Tom Creek +1,442 Unincorporated Areas of McDowell County. Approximately 300 feet upstream of State Route 1434 +1,461 Big Camp Creek At the confluence with North Muddy Creek +1,134 Unincorporated Areas of McDowell County. Approximately 370 feet downstream of Interstate 40 +1,197 Bobs Creek At the confluence with North Muddy Creek +1,206 Unincorporated Areas of McDowell County. Approximately 1,050 feet upstream of State Route 1796 +1,219 Boney Creek At the confluence with Cove Creek +1,137 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of State Route 1143 +1,170 Bradley Creek At the confluence with Loom Branch +1,420 Unincorporated Areas of McDowell County. Approximately 850 feet upstream of State Route 1133 +1,488 Brevard Creek At the confluence with Catawba River +1,342 Unincorporated Areas of McDowell County. Approximately 1.4 miles upstream of State Route 1241 +1,472 Buck Creek At the confluence with Catawba River +1,246 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of Sugar Cove Road +1,883 Caleb Branch At the confluence with North Muddy Creek +1,163 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1760 +1,224 Camp Creek At the confluence with Crooked Creek +1,441 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1131 +1,535 Cane Creek (near Dysartsville) At the McDowell/Rutherford County boundary +975 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of the confluence of Shoal Creek +1,044 Cane Creek (near Greenlee) Approximately 500 feet upstream of the confluence with Catawba River +1,292 Unincorporated Areas of McDowell County. Approximately 250 feet upstream of U.S. Highway 70 +1,454 Cane Creek Tributary 1 (near Dysartsville) At the confluence with Cane Creek (near Dysartsville) +1,037 Unincorporated Areas of McDowell County. Approximately 1,680 feet upstream of the confluence with Cane Creek (near Dysartsville) +1,064 Cane Creek Tributary 1 (near Greenlee) At the confluence with Cane Creek (near Greenlee) +1,332 Unincorporated Areas of McDowell County. Approximately 1,600 feet upstream of State Route 1230 +1,359 Cane Creek Tributary 2 (near Greenlee) At the confluence with Cane Creek (near Greenlee) +1,418 Unincorporated Areas of McDowell County. Approximately 0.3 mile upstream of the confluence with Cane Creek (near Greenlee) +1,458 Catawba River At the Burke/McDowell County boundary +1,206 Unincorporated Areas of McDowell County, City of Marion, Town of Old Fort. Approximately 1.6 miles upstream of the confluence of Left Prong Catawba River +1,832 Catawba River Tributary 3 At the confluence with Catawba River +1,269 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of the confluence with Catawba River +1,281 Clarks Branch At the confluence with Little Crooked Creek +1,476 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of State Route 1106 +1,504 Clear Creek At the confluence with Catawba River +1,267 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of the confluence with Catawba River +1,285 Conley Branch At the confluence with North Fork Catawba River +1,402 Unincorporated Areas of McDowell County. Approximately 1,850 feet upstream of the confluence with Conley Branch Tributary 1 +1,441 Conley Branch Tributary 1 At the confluence with Conley Branch +1,419 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of the confluence with Conley Branch +1,443 Cove Creek Approximately 400 feet downstream of McDowell/Rutherford County boundary +1,128 Unincorporated Areas of McDowell County. At the confluences of West Fork Cove Creek and Morgan Creek (near Sugar Hill) +1,196 Cox Creek At the confluence with Armstrong Creek +1,418 Unincorporated Areas of McDowell County. Approximately 250 feet upstream of the confluence of Rag Creek +1,528 Crooked Creek At the confluence with Catawba River +1,321 Unincorporated Areas of McDowell County. Approximately 620 feet upstream of State Route 1100 +1,845 Curtis Creek At the confluence with Catawba River +1,375 Unincorporated Areas of McDowell County, Town of Old Fort. Approximately 1,850 feet upstream of the confluence of Hickory Branch +1,926 Dales Creek At the confluence with Catawba River/Lake James +1,206 Unincorporated Areas of McDowell County. Approximately 1.0 mile upstream of State Route 1552 +1,386 Frasheur Creek At the McDowell/Rutherford County boundary +1,152 Unincorporated Areas of McDowell County. Approximately 0.7 mile upstream of State Route 1140 +1,223 Glades Creek At the confluence with Catawba River +1,300 Unincorporated Areas of McDowell County. Approximately 400 feet upstream of State Route 1161 +1,450 Goose Creek At the confluence with North Muddy Creek +1,227 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 147 +1,306 Greasy Creek Approximately 400 feet downstream of County boundary +1,148 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of State Route 1142 +1,198 Harris Creek (near Sugar Hill) At the confluence with Cove Creek +1,132 Unincorporated Areas of McDowell County. Approximately 1,400 feet upstream of State Route 1140 +1,168 Harris Creek (near Woodlawn) At the confluence with Tom Creek +1,606 Unincorporated Areas of McDowell County. Approximately 850 feet upstream of the confluence with Tom Creek +1,636 Haw Branch At the confluence with Crooked Creek +1,379 Unincorporated Areas of McDowell County. Approximately 1,600 feet upstream of State Route 1135 +1,432 Hicks Branch At the confluence with North Muddy Creek +1,254 Unincorporated Areas of McDowell County. Approximately 1,800 feet upstream of State Route 1168 +1,322 High Shoals Creek At the confluence with South Muddy Creek +1,218 Unincorporated Areas of McDowell County. Approximately 200 feet upstream of the confluence of Barnes Branch +1,225 Honeycutt Creek At the confluence with North Fork Catawba River +1,487 Unincorporated Areas of McDowell County. Approximately 340 feet downstream of the Railroad +1,854 Hoppers Creek At the confluence with South Muddy Creek +1,118 Unincorporated Areas of McDowell County. Approximately 1.7 miles upstream of State Highway 226 +1,201 Jackson Creek At the confluence with Lytle Branch +1,492 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of the confluence with Lytle Branch +1,534 Jake Creek At the upstream side of the Railroad +1,283 Unincorporated Areas of McDowell County. Approximately 0.5 mile upstream of State Route 1247 +1,346 Jarrett Creek At the confluence with Mill Creek +1,474 Unincorporated Areas of McDowell County. Approximately 2.6 miles upstream of the confluence with Mill Creek +1,791 Johns Creek At the confluence with Catawba River +1,214 Unincorporated Areas of McDowell County. Approximately 1,600 feet upstream of State Route 1501 +1,228 Katy Creek At the confluence with South Muddy Creek +1,150 Unincorporated Areas of McDowell County. Approximately 1,100 feet upstream of State Route 1798 +1,252 Left Prong Catawba River At the confluence with Catawba River +1,527 Unincorporated Areas of McDowell County. Approximately 2.0 miles upstream of the confluence with Catawba River +1,739 Licklog Creek At the confluence with Buck Creek +1,777 Unincorporated Areas of McDowell County. Approximately 1.3 miles upstream of the confluence with Buck Creek +2,064 Little Buck Creek At the confluence with Buck Creek/Lake Tahoma +1,407 Unincorporated Areas of McDowell County. Approximately 200 feet downstream of the confluence of Long Branch +1,512 Little Crooked Creek At the confluence with Crooked Creek +1,450 Unincorporated Areas of McDowell County. Approximately 100 feet downstream of State Route 1106 +1,536 Little Crooked Creek Tributary 1 At the confluence with Little Crooked Creek +1,461 Unincorporated Areas of McDowell County. Approximately 1,470 feet upstream of the confluence with Little Crooked Creek +1,469 Little Toe River At the confluence with Crooked Creek +1,388 Unincorporated Areas of McDowell County. Approximately 25 feet upstream of State Route 1240 +1,478 Lonan Branch At the confluence with Pepper Creek +1,536 Unincorporated Areas of McDowell County. Approximately 1,500 feet upstream of the confluence with Pepper Creek +1,581 Long Branch At the confluence with Mill Creek +1,816 Unincorporated Areas of McDowell County. Approximately 0.4 mile upstream of the Railroad +1,953 Loom Branch At the confluence with Crooked Creek +1,415 Unincorporated Areas of McDowell County. Approximately 0.8 mile upstream of the confluence of Bradley Creek +1,488 Lytle Branch At the confluence with Crooked Creek +1,487 Unincorporated Areas of McDowell County. Approximately 1,100 feet upstream of State Route 1103 +1,525 Mackey Creek At the confluence with the Catawba River +1,284 Unincorporated Areas of McDowell County. Approximately 2.8 miles upstream of U.S. Highway 70 +1,721 Magazine Branch At the confluence with Hoppers Creek +1,145 Unincorporated Areas of McDowell County. Approximately 200 feet downstream of State Route 1771 +1,162 Martin Branch At the confluence with North Fork Catawba River +1,435 Unincorporated Areas of McDowell County. Approximately 350 feet upstream of State Route 1564 +1,469 Mill Creek Approximately 200 feet upstream of the confluence with Catawba River +1,410 Unincorporated Areas of McDowell County, Town of Old Fort. Approximately 300 feet downstream of State Route 1408 +1,874 Mollys Branch At the confluence with Hoppers Creek +1,129 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1769 +1,170 Morgan Creek (near Ledbetter Mountain) At the confluence with Cove Creek +1,173 Unincorporated Areas of McDowell County. Approximately 1,270 feet upstream of the confluence with Cove Creek +1,180 Morgan Creek (near Sugar Hill) At the confluence with Cove Creek and West Fork Cove Creek +1,196 Unincorporated Areas of McDowell County. Approximately 0.8 mile upstream of the confluence with Cove Creek and West Fork Cove Creek +1,217 Muddy Creek Approximately 400 feet downstream of the Burke/McDowell County boundary +1,087 Unincorporated Areas of McDowell County. At the confluences of North Muddy Creek and South Muddy Creek +1,089 Newberry Creek At the confluence with Curtis Creek +1,670 Unincorporated Areas of McDowell County. Approximately 1.3 miles upstream of the confluence with Curtis Creek +1,923 Nicks Creek At the confluence with Catawba River +1,240 Unincorporated Areas of McDowell County, City of Marion. Approximately 0.5 mile upstream of State Route 1250 +1,447 North Fork Catawba River At the confluence with Catawba River/Lake James +1,206 Unincorporated Areas of McDowell County. Approximately 1.9 miles upstream of State Route 1571 +2,506 North Muddy Creek At the confluence with Muddy Creek and South Muddy Creek +1,089 Unincorporated Areas of McDowell County. Approximately 1.1 miles upstream of the confluence of North Muddy Creek Tributary 2 +1,326 North Muddy Creek Tributary 2 At the confluence with North Muddy Creek +1,297 Unincorporated Areas of McDowell County. Approximately 1.0 mile upstream of State Route 1168 +1,327 North Muddy Creek Tributary 1 At the confluence with North Muddy Creek +1,094 Unincorporated Areas of McDowell County. Approximately 1,000 feet upstream of State Route 1763 +1,132 Old Catawba River At the confluence of Shadrick Creek +1,091 Unincorporated Areas of McDowell County. Approximately 500 feet upstream of the confluence of Shadrick Creek +1,091 Patten Branch At the confluence with South Muddy Creek +1,101 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1763 +1,142 Pepper Creek At the confluence with North Fork Catawba River +1,446 Unincorporated Areas of McDowell County. Approximately 0.6 mile upstream of State Route 1566 +1,674 Rock Creek At the confluence with Second Broad River +1,290 Unincorporated Areas of McDowell County. At the downstream side of State Route 1145 +1,365 Second Broad River At the McDowell/Rutherford County boundary +990 Unincorporated Areas of McDowell County. Approximately 0.8 mile upstream of State Route 1001 +1,369 Shadrick Creek At the confluence with Old Catawba River +1,091 Unincorporated Areas of McDowell County. Approximately 2.1 miles upstream of the Railroad +1,194 Shoal Creek At the confluence with Cane Creek (near Dysartsville) +1,028 Unincorporated Areas of McDowell County. Approximately 1.2 miles upstream of State Route 1775 +1,345 South Fork Tom Creek At the confluence with Tom Creek +1,456 Unincorporated Areas of McDowell County. Approximately 0.3 mile upstream of the confluence with Tom Creek +1,489 South Muddy Creek At the confluence with Muddy Creek and North Muddy Creek +1,089 Unincorporated Areas of McDowell County. Approximately 0.7 mile upstream of State Route 1780 +1,331 South Muddy Creek Tributary 1 At the confluence with South Muddy Creek +1,107 Unincorporated Areas of McDowell County. At the Burke/McDowell County boundary +1,124 South Muddy Creek Tributary 2 At the confluence with South Muddy Creek +1,123 Unincorporated Areas of McDowell County. Approximately 600 feet upstream of State Route 1767 +1,143 Stanfords Creek At the confluence with Goose Creek +1,239 Unincorporated Areas of McDowell County. Approximately 2.1 miles upstream of the confluence with Goose Creek +1,346 Swannanoa Creek At the confluence with Mill Creek +1,603 Unincorporated Areas of McDowell County. Approximately 0.7 mile upstream of the confluence with Mill Creek +1,702 Thompsons Fork At the confluence with North Muddy Creek +1,101 Unincorporated Areas of McDowell County. Approximately 200 feet downstream of State Route 1747 +1,181 Tom Creek At the confluence with Catawba River +1,229 Unincorporated Areas of McDowell County. Approximately 280 feet upstream of State Route 1440 +1,637 Tom Creek Tributary 1 At the confluence with Tom Creek +1,418 Unincorporated Areas of McDowell County. Approximately 1,300 feet upstream of State Route 1433 +1,488 Walton Crowley Branch At the confluence with North Muddy Creek +1,119 Unincorporated Areas of McDowell County. Approximately 1,230 feet upstream of State Route 1760 +1,139 West Fork Cove Creek At the confluence with Cove Creek and Morgan Creek (near Sugar Hill) +1,197 Unincorporated Areas of McDowell County. Approximately 1.3 miles upstream of State Route 1001 +1,259 Youngs Fork At the confluence with North Muddy Creek +1,205 Unincorporated Areas of McDowell County, City of Marion. Approximately 125 feet downstream of Glenview Street +1,327 HELP * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Marion Maps available for inspection at the Marion City Hall, 194 North Main Street, Marion, North Carolina. Town of Old Fort Maps available for inspection at the Old Fort Town Hall, 38 South Catawba Avenue, Old Fort, North Carolina. Unincorporated Areas of McDowell County Maps available for inspection at the McDowell County Administration Building, 60 East Court Street, Marion, North Carolina. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: April 18, 2008. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-9225 Filed 4-28-08; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 071030625-7696-02] RIN 0648-XH32 Fisheries of the Northeastern United States; Summer Flounder Fishery; Quota Transfer AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; inseason quota transfer. SUMMARY: NMFS announces that the State of North Carolina is transferring 28,045 lb (12,721 kg) of commercial summer flounder quota to the Commonwealth of Virginia from its 2008 quota. By this action, NMFS adjusts the quotas and announces the revised commercial quota for each state involved. DATES: Effective April 24, 2008, through December 31, 2008. FOR FURTHER INFORMATION CONTACT: Emily Bryant, Fishery Management Specialist,
(978)281-9244, FAX
(978)281-9135. SUPPLEMENTARY INFORMATION: Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.100. The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.100(d). The Regional Administrator is required to consider the criteria set forth in § 648.100(d)(3) in the evaluation of requests for quota transfers or combinations. North Carolina has agreed to transfer 28,045 lb (12,721 kg) of its 2008 commercial quota to Virginia to cover the summer flounder landings of four North Carolina vessels granted safe harbor in Virginia due to winter storm conditions between January 3 and March 31, 2008. The Regional Administrator has determined that the criteria set forth in § 648.100(d)(3) have been met. The revised quotas for calendar year 2008 are: North Carolina, 2,530,479 lb (1,147,806 kg); and Virginia, 2,015,211 lb (914,084 kg). Classification This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: April 23, 2008. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08-1195 Filed 4-24-08; 1:56 pm]
Connectionstraces to 44
Traces to 44 documents
U.S. Code
42 references not yet in our index
  • 7 CFR 1463
  • Pub. L. 108-357
  • 7 CFR 1463.8
  • 7 CFR 1463.3
  • 42 USC 4321-4347
  • 7 CFR 799
  • 7 CFR 3015
  • Pub. L. 104-121
  • 7 USC 714b
  • 21 CFR 510
  • 5 USC 801-808
  • Pub. L. 104-4
  • 109 Stat. 48
  • 22 CFR 40
  • Pub. L. 105-277
  • Pub. L. 104-208
  • 110 Stat. 3546
  • 26 CFR 1
  • T.D. 9390
  • T.D. 9394
  • 26 CFR 301
  • 26 CFR 602
  • 40 CFR 52
  • 42 USC 164(b)(1)(C)(2)
  • 38 Stat. 102
  • 645 F.2d 701
  • Pub. L. 95-95
  • 91 Stat. 685
  • 40 CFR 51
  • 40 CFR 9
  • Pub. L. 104-113
  • 40 CFR 58
  • 151 F.3d 1205
  • 40 CFR 81.310
  • 40 CFR 81.311
  • 40 CFR 55
  • Pub. L. 101-549
  • 44 CFR 67
  • 44 CFR 60
  • 44 CFR 10
+ 2 more
Citation graph
cites case law
Unknown
Final rule
U.S.C.§ 518d
U.S.C.§ 6103
U.S.C.§ 553
Fed. Reg.Notices
Fed. Reg.Notices
Fed. Reg.Presidential Documents
Fed. Reg.Notices
C.F.R.§ 510.600
U.S.C.§ 804
F. App'x645 F.2d 701
F. App'x151 F.3d 1205
Cite7 CFR 1463
Cites 86 · showing 12Cited by 0 across 0 sources
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