Unknown. Final rule; technical amendment

119,684 words·~544 min read·/register/2008/05/16/08-1269

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-2008-05-16.xml --- 73 96 Friday, May 16, 2008 Contents AID Agency for International Development NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28424 E8-10981 Agricultural Agricultural Marketing Service RULES Livestock Mandatory Reporting: Reestablishment and Revision of the Reporting Regulation for Swine, Cattle, Lamb, and Boxed Beef, 28606-28662 E8-10185 NOTICES Standards for Grades of Frozen Okra, 28424 E8-10845 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Forest Service Animal Animal and Plant Health Inspection Service PROPOSED RULES Importation of Baby Squash and Baby Courgettes from Zambia, 28372-28377 E8-10920 Importation of Horses, Ruminants, Swine, and Dogs:

Remove Panama from Lists of Regions Where Screwworm is Considered to Exist, 28382-28385 E8-10918 Importation of Tomatoes from Souss-Massa, Morocco, 28377-28382 E8-10923 Antitrust Antitrust Division NOTICES Cooperative Research and Production Act of 1993; Semiconductor Test Consortium, Inc., 28508 E8-10843 National Cooperative Research snd Production Act of 1993 OPENSAF Foundation, 28508 E8-10842 Army Army Department See Engineers Corps Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Centers Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 28478-28479 E8-10935 Meetings: Advisory Council for the Elimination of Tuberculosis, 28479-28480 E8-10993 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 28480 E8-10974 Healthcare Infection Control Practices Advisory Committee, 28480 E8-10991 Statement of Organization, Functions, and Delegations of Authority, 28480-28484 E8-10982 E8-10986 Centers Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program:

Revisions to the Medicare Advantage and Prescription Drug Benefit Program, 28556-28604 08-1244 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28484 E8-10664 Coast Guard Coast Guard RULES Security Zone: Portland Rose Festival on Willamette River, 28321 E8-10921 Commerce Commerce Department See Foreign-Trade Zones Board See International Trade Administration See National Institute of Standards and Technology See National Oceanic and Atmospheric Administration Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Addition to and Deletions from the Procurement List, 28428 E8-11014 Proposed Additions to the Procurement List, 28428-28429 E8-11013 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 28551-28552 E8-10945 E8-10946 Corporation Corporation for National and Community Service NOTICES Meetings; Sunshine Act, 28436-28437 08-1269 Defense Defense Department See Engineers Corps PROPOSED RULES Federal Acquisition Regulation: Contractor Compliance Program and Integrity Reporting, 28407-28410 E8-11137 Employment Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28509-28510 E8-10934 Solicitation for Grant Applications;

Availability of Funds: Demonstration Projects Targeting Dislocated Workers, 28510-28528 E8-10971 Energy Energy Department See Federal Energy Regulatory Commission See National Nuclear Security Administration PROPOSED RULES Assistance Regulations, 28385-28391 E8-11005 NOTICES Intent to Prepare an Environmental Impact Statement, etc.: Santa Susana Field Laboratory, 28437-28441 E8-11033 Meetings: Environmental Management Site-Specific Advisory Board; Idaho National Laboratory, 28441 E8-11006 Engineers Engineers Corps NOTICES Environmental statements; availability, etc.:

Middle Harbor Redevelopment Project of the Port of Long Beach, Los Angeles County, CA, 28437 E8-10908 EPA Environmental Protection Agency RULES Implementation of the New Source Review

(NSR)Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 28321-28350 E8-10768 PROPOSED RULES Pesticide Inert Ingredient: Proposal to Revoke the Obsolete Tolerance Exemption for Sperm Oil, 28391-28394 E8-10922 NOTICES Draft National Pollutant Discharge Elimination System General Permit for Stormwater Discharges from Construction Activities, 28454-28459 E8-10997 Environmental Impacts Statements; Availability, etc.: Weekly Receipt, 28461 E8-11009 Environmental Impact Statements; Availability, etc.: EPA Comments, 28459-28461 E8-11069 Filing of Pesticide Petitions for Residues of Pesticide Chemicals in or on Various Commodities, 28461-28465 E8-10915 Receipt of Petition: Massachusetts Marine Sanitation Device Standard, 28465-28466 E8-10998 Registration Applications: Pesticide Products, 28466-28468 E8-11001 Sulfluramid; Product Cancellation Order, 28468-28469 E8-10919 FAA Federal Aviation Administration RULES Amendment of Class E Airspace: Waynesburg, PA, 28320-28321 E8-10425 NOTICES Petition for Exemption; Summary of Petition Received, 28546-28547 E8-11011 Petitions for Exemption; Summary of Petitions Received, 28547-28548 E8-11010 FCC Federal Communications Commission RULES Promoting Diversification of Ownership in the Broadcasting Services, 28361-28370 E8-11039 PROPOSED RULES Promoting Diversification of Ownership in the Broadcasting Services, 28400-28407 E8-11043 Federal Emergency Federal Emergency Management Agency RULES Assistance Program Under the 9/11 Heroes Stamp Act (2001), 28357-28361 E8-10936 Flood Elevation Determinations, 28350-28357 E8-10931 PROPOSED RULES Proposed Flood Elevation Determinations, 28394-28400 E8-10933 NOTICES Use of Digital Flood Data, 28491-28492 E8-10932 Federal Energy Federal Energy Regulatory Commission NOTICES Application Accepted for Filing and Soliciting Motions to Intervene and Protests: Salvatore and Michelle Shifrin, 28441-28442 E8-11026 Application for Amendment of License and Soliciting Comments, Motions to Intervene, and Protests: Bear Swamp Power Co. LLC, 28442-28443 E8-10954 Application Tendered for Filing With the Commission, etc.: Fire Mountain Lodge, 28443-28444 E8-10957 Application to Amend Authorization: Florida Gas Transmission Co., LLC, 28444 E8-10965 Combined Notice of Filings, 28444-28446 E8-10999 Environmental Assessment; Availability: Boise-Kuna Irrigation District, et al., 28446 E8-11027 Natural Gas Pipeline Company of America; Proposed Herscher-Galesville Expansion Project, 28446-28447 E8-11028 Virginia Electric & Power Co., 28447 E8-10959 Exempt Wholesale Generators Status: Wheatfield Wind Power Project LLC, et al., 28447 E8-10961 Filing: Midwest Independent Transmission System Operator, Inc. et al., 28447-28448 E8-11022 New York Independent System Operator, Inc., 28448 E8-11025 Public Service Company of Colorado, 28448 E8-10956 Southern Company Services, Inc., 28448-28449 E8-11021 Taylor, G. Tom, 28449 E8-10963 Wagoner, Gregory E., 28449 E8-10962 Issuance of Order: Shell Energy North America (U.S.), L.P., 28449-28450 E8-11024 Standard Binghamton LLC, 28450 E8-11023 Limited Scoping for Ohio Storage Expansion Project: Columbia Gas Transmission Corp., 28450-28451 E8-11019 Request Under Blanket Authorization: Equitrans, L.P., 28451 E8-10955 Northern Natural Gas Co., 28451-28452 E8-10960 Tennessee Gas Pipeline Co., 28452 E8-10958 Transcontinental Gas Pipe Line Corporation, 28452-28453 E8-11020 Supplemental Notice of Initial Electric Market-Based Rate Authorization Filings etc.; Revised Treatment, 28453 E8-10964 Federal Reserve Federal Reserve System RULES Availability of Funds and Collection of Checks, 28319-28320 E8-10973 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Proposed Removal of Erigeron Maguirei from the Federal List of Endangered and Threatened Plants; Availability of Post-Delisting Monitoring Plan, 28410-28423 E8-9282 NOTICES Draft Bexar County Karst Invertebrates Recovery Plan, 28494-28495 E8-10996 East Bay Municipal Utility District Habitat Conservation Plan, East Bay Watershed Lands, Alameda and Contra Costa Counties, CA, 28495-28497 E8-10994 Regional Habitat Conservation Plan, Hays County, TX, 28497-28498 E8-10941 Williamson County Regional Habitat Conservation Plan, 28498-28499 E8-10942 Food Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28484-28488 E8-10985 E8-11057 MISSING FOR: Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES Application for Expansion: Foreign-Trade Zone 102, St. Louis County, MO, 28429 E8-11053 Application for Reorganization and Expansion: Foreign-Trade Zone 176, Rockford, IL, 28429-28430 E8-11051 Foreign-Trade Zone 30, Salt Lake City, UT, 28430 E8-11048 Application for Subzone Status: Foreign-Trade Zone 167, Brown County, WI, 28430-28431 E8-11055 Forest Forest Service NOTICES Environmental Impact Statement; Intent to Prepare: Gateway West 230/500 kV Transmission Line Project; Idaho and Wyoming, etc., 28425-28426 E8-11060 Environmental Statements; Availability, etc.: Deschutes & Ochoco National Forests, Deschutes, Crook, Jefferson, Klamath, Grant and Lake Counties, OR, 28426-28428 E8-10947 GSA General Services Administration PROPOSED RULES Federal Acquisition Regulation: Contractor Compliance Program and Integrity Reporting, 28407-28410 E8-11137 Geological Geological Survey NOTICES Meetings: National Geospatial Advisory Committee, 28500 E8-10928 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-11031 28469-28471 E8-11032 E8-11045 Hospital Preparedness Program (HPP), 28471-28472 E8-10970 Program Reporting and Accountability Changes to the Hospital Preparedness Program, 28472-28478 E8-11015 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency See U.S. Citizenship and Immigration Services Housing Housing and Urban Development Department NOTICES Federal Property Suitable as Facilities to Assist the Homeless, 28494 E8-10630 Notice of Funding Opportunity

(NOFA)for HOME Investment Partnership: Competitive Reallocation of CHDO Funds to Provide for Energy Efficient and Environmentally-Friendly Housing for Low-Income Families, 28664-28697 E8-11054 Interior Interior Department See Fish and Wildlife Service See Geological Survey See Land Management Bureau See Minerals Management Service See National Park Service See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service NOTICES Meetings: Art Advisory Panel, 28552-28553 E8-10844 International International Trade Administration NOTICES Extension of Time Limit for Preliminary Results of Countervailing Duty Administrative Review: Certain Lined Paper Products from India, 28431 E8-11040 Extension of Time Limits for Final Results of Antidumping Duty Administrative Review: Hand Trucks and Certain Parts Thereof from the People's Republic of China, 28431-28432 E8-11056 International International Trade Commission NOTICES Investigation Determination: 1-Hydroxyethylidene-1,1-Diphosphonic Acid

(HEDP)from China and India, 28507 E8-10966 Frontseating Service Valves from China, 28507-28508 E8-10967 Justice Justice Department See Antitrust Division Labor Labor Department See Employment and Training Administration See Mine Safety and Health Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Alaska Native Claims Selection, 28500 E8-10990 Environmental Impact Statement; Intent to Prepare: Gateway West 230/500 kV Transmission Line Project; Idaho and Wyoming, etc., 28425-28426 E8-11060 Planning Criteria for Programmatic Environmental Impact Statement: Leasing of Geothermal Resources, 28500-28502 E8-11059 Minerals Minerals Management Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28502-28504 E8-11003 Mine Mine Safety and Health Administration NOTICES Petitions for Modification, 28528-28530 E8-10943 NASA National Aeronautics and Space Administration PROPOSED RULES Federal Acquisition Regulation: Contractor Compliance Program and Integrity Reporting, 28407-28410 E8-11137 NOTICES Meetings: NASA International Space Station Advisory Committee, 28531-28532 E8-10711 National Highway National Highway Traffic Safety Administration RULES Vehicle Identification Number Requirements; Correction, 28370-28371 E8-10831 NOTICES Petition for Exemption from the Vehicle Theft Prevention Standard: smart USA Distributor LLC, 28548-28549 E8-10983 National Institute National Institute of Standards and Technology NOTICES Interpretation of the International System of Units (the Metric System of Measurement) for the United States, 28432-28433 E8-11058 Meetings: Judges Panel of the Malcolm Baldrige National Quality Award, 28433 E8-11034 NIH National Institutes of Health NOTICES Meetings: Board of Scientific Counselors, National Institute of Dental and Craniofacial Research, 28488 E8-10836 Center for Scientific Review, 28488-28489 E8-10840 Center for Scientific Review Special Emphasis Panel, E8-10837 28488-28490 E8-10948 National Institute of Child Health and Human Development, 28490-28491 E8-10838 E8-10839 National Institute of Dental and Craniofacial Research Special Emphasis Panel, 28490 E8-10835 National Institute of Mental Health Special Emphasis Panel, 28491 E8-10841 National National Nuclear Security Administration NOTICES Environmental Statements; Availability, etc.: Los Alamos National Laboratory, Los Alamos, NM, 28453-28454 E8-11007 NOAA National Oceanic and Atmospheric Administration NOTICES Codeless and Semi-Codeless Access to the Global Positioning System, 28433-28435 E8-11148 Meetings: Gulf of Mexico Fishery Management Council, 28435 E8-10984 Permits: Foreign Fishing, 28435-28436 E8-11016 Receipt of Application: Marine Mammals (File No. 13392), 28436 E8-11017 National Park National Park Service NOTICES Meetings: Boston Harbor Islands National Recreation Area Advisory Council, 28504-28505 E8-10992 Chesapeake and Ohio Canal National Historical Park Advisory Commission, 28505 E8-10989 National Park System Advisory Board, 28505-28506 E8-10988 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-10937 28532-28534 E8-10938 E8-10939 Nuclear Nuclear Regulatory Commission NOTICES Consideration of Issuance of Amendment of Renewed Facility Operating License: Dominion Nuclear Connecticut, Inc., 28534-28537 E8-11030 Occupational Occupational Safety and Health Administration NOTICES Meetings: National Advisory Committee on Occupational Safety and Health, 28530-28531 E8-10995 Railroad Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28537-28538 E8-11038 E8-11041 SEC Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: National Securities Clearing Corp., 28539-28541 E8-10968 Philadelphia Stock Exchange, Inc., 28541-28543 E8-10944 SBA Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28543-28544 E8-10940 Disaster Declarations: Arkansas, 28544 E8-10972 Small Business Size Standards: Waiver of the Nonmanufacturer Rule, 28544 E8-10980 State State Department NOTICES Culturally Significant Objects Imported for Exhibition Determinations: “The Tsar and the President: Alexander II and Abraham Lincoln”, 28544-28545 E8-11046 Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008; Determination: Provision of Military Assistance in Support of Southern Sudan Security Sector Transformation Program, 28545 E8-11062 Meetings: Shipping Coordinating Committee, 28545-28546 E8-11066 Surface Surface Mining Reclamation and Enforcement Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28506-28507 E8-10641 Surface Surface Transportation Board NOTICES Control Exemption: Patriot Rail, LLC, Patriot Rail Holdings LLC, and Patriot Rail Corp., Louisiana and North West Railroad Co. LLC, 28549 E8-10848 Lease and Operation Exemption: Squaw Creek Southern Railroad, Inc.; Central of Georgia Railroad Co., 28550 E8-11002 Trackage Rights Exemption: CSX Transportation, Inc.—Central Railroad of Indianapolis D/B/A Chicago, Fort Wayne and Eastern, 28550-28551 E8-10874 Susquehanna Susquehanna River Basin Commission NOTICES Draft Revised Comprehensive Plan; 90-day Public Comment Period and Public Hearings, 28546 E8-11044 TVA Tennessee Valley Authority NOTICES Meetings; Sunshine Act, 28546 E8-10979 Transportation Transportation Department See Federal Aviation Administration See National Highway Traffic Safety Administration See Surface Transportation Board Treasury Treasury Department See Comptroller of the Currency See Internal Revenue Service MISSING FOR: U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28492-28494 E8-11037 E8-11049 E8-11050 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 28556-28604 08-1244 Part III Agriculture Department, Agricultural Marketing Service, 28606-28662 E8-10185 Part IV Housing and Urban Development Department, 28664-28697 E8-11054 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 96 Friday, May 16, 2008 Rules and Regulations FEDERAL RESERVE SYSTEM 12 CFR Part 229 [Regulation CC; Docket No. R-1317] Availability of Funds and Collection of Checks AGENCY: Board of Governors of the Federal Reserve System. ACTION: Final rule; technical amendment. SUMMARY: The Board of Governors (Board) is amending appendix A of Regulation CC to delete the reference to the Memphis branch office of the Federal Reserve Bank of St. Louis and reassign the Federal Reserve routing symbols currently listed under that office to the head office of the Federal Reserve Bank of Atlanta. In addition, the Board is providing advance notice regarding future amendments to appendix A that are anticipated in connection with the Reserve Banks' restructuring of the check-processing operations within the Federal Reserve System. DATES: The final rule will become effective on July 19, 2008. FOR FURTHER INFORMATION CONTACT: Jeffrey S. H. Yeganeh, Financial Services Manager (202/728-5801), or Joseph P. Baressi, Financial Services Project Leader (202/452-3959), Division of Reserve Bank Operations and Payment Systems; or Heatherun Sophia Allison (202/452-3565), Senior Counsel, Legal Division. For users of Telecommunications Devices for the Deaf

(TDD)only, contact 202/263-4869. SUPPLEMENTARY INFORMATION: Background Regulation CC establishes the maximum period a depositary bank may wait between receiving a deposit and making the deposited funds available for withdrawal. 1 A depositary bank generally must provide faster availability for funds deposited by a “local check” than by a “nonlocal check.” A check drawn on a bank is considered local if it is payable by or at a bank located in the same Federal Reserve check-processing region as the depositary bank. A check drawn on a nonbank is considered local if it is payable through a bank located in the same Federal Reserve check-processing region as the depositary bank. Checks that do not meet the requirements for “local” checks are considered “nonlocal.” 1 For purposes of Regulation CC, the term “bank” refers to any depository institution, including commercial banks, savings institutions, and credit unions. Appendix A to Regulation CC contains a routing number guide that assists banks in identifying local and nonlocal banks and thereby determining the maximum permissible hold periods for most deposited checks. The appendix includes a list of each Federal Reserve check-processing office and the first four digits of the routing number, known as the Federal Reserve routing symbol, of each bank that is served by that office for check-processing purposes. Banks whose Federal Reserve routing symbols are grouped under the same office are in the same check-processing region and thus are local to one another. Final Amendments to Appendix A On July 19, 2008, the Reserve Banks will transfer the check-processing operations of the Memphis branch office of the Federal Reserve Bank of St. Louis to the head office of the Federal Reserve Bank of Atlanta. 2 To assist banks in identifying local and nonlocal checks and making funds availability decisions, the Board is amending the lists of routing symbols in appendix A associated with the Federal Reserve Banks of St. Louis and Atlanta to reflect the transfer of check-processing operations from the Memphis branch office to the Atlanta head office. To coincide with the effective date of the underlying check-processing changes, the amendments to appendix A are effective July 19, 2008. The Board is providing notice of the amendments at this time to give affected banks ample time to make any needed processing changes. Early notice also will enable affected banks to amend their availability schedules and related disclosures if necessary and provide their customers with notice of these changes. 3 2 The Reserve Banks announced in June 2007 that the check-processing operations of the Memphis branch office would be transferred to the Atlanta head office in the third quarter of 2008. See *http://www.federalreserve.gov/newsevents/press/other/20070626a.htm.* 3 Section 229.18(e) of Regulation CC requires that banks notify account holders who are consumers within 30 days after implementing a change that improves the availability of funds. Information About Anticipated Future Changes to Appendix A The Federal Reserve Banks announced on March 31, 2008, that they are accelerating their planned reductions in the number of locations at which they process checks. 4 These steps are being taken in response to the continued nationwide decline in check usage and to position the Reserve Banks more effectively to meet the cost recovery requirements of the Monetary Control Act of 1980. Whereas they had previously announced that the transitions would take place by early 2011, the Reserve Banks now plan to cease check-processing operations at all of their check-processing offices except four—Philadelphia, Cleveland, Atlanta, and Dallas—by early 2010. As a result of the accelerated schedule, the tentative dates in the Board's earlier **Federal Register** notice (73 FR 1267, Jan. 8, 2008) regarding this matter are no longer accurate. Moreover, the accelerated schedule set forth in the Reserve Banks' March 2008 announcement is subject to further review and may change. Institutions seeking the most current information should consult the Reserve Banks' check-restructuring Web site. 5 4 See *http://www.federalreserve.gov/newsevents/press/other/20080331a.htm.* 5 *http://www.frbservices.org/communications/check_restructuring.html* . The Board plans to amend appendix A in connection with each stage of the restructuring to delete the names of the offices that will no longer process checks and transfer the affected Federal Reserve routing symbols to other check-processing offices. The Board intends to provide notice of each amendment to appendix A approximately 60 days prior to the effective date of the amendment in order to give affected banks ample time to make processing changes and, if necessary, amend their availability schedules and related disclosures and provide their customers with notice of any changes to their availability schedules. Administrative Procedure Act The Board has not followed the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of the final rule. The revisions to appendix A are technical in nature and are required by the statutory and regulatory definitions of “check-processing region.” Because there is no substantive change on which to seek public input, the Board has determined that the § 553(b) notice and comment procedures are unnecessary. In addition, the underlying consolidation of Federal Reserve Bank check-processing offices involves a matter relating to agency management, which is exempt from notice and comment procedures. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board has reviewed the final rule under authority delegated to the Board by the Office of Management and Budget. The technical amendments to appendix A of Regulation CC will delete the reference to the Memphis branch office of the Federal Reserve Bank of St. Louis and reassign the routing symbols listed under that office to the head office of the Federal Reserve Bank of Atlanta. The depository institutions that are located in the affected check-processing regions and that include the routing numbers in their disclosure statements would be required to notify customers of the resulting change in availability under § 229.18(e). However, all paperwork collection procedures associated with Regulation CC already are in place, and the Board accordingly anticipates that no additional burden will be imposed as a result of this rulemaking. List of Subjects in 12 CFR Part 229 Banks, Banking, Reporting and recordkeeping requirements. Authority and Issuance For the reasons set forth in the preamble, the Board is amending 12 CFR part 229 to read as follows: PART 229—AVAILABILITY OF FUNDS AND COLLECTION OF CHECKS (REGULATION CC) 1. The authority citation for part 229 continues to read as follows: Authority: 12 U.S.C. 4001-4010, 12 U.S.C. 5001-5018. 2. The Sixth and Eighth Federal Reserve District routing symbol lists in appendix A are revised to read as follows: Appendix A to Part 229—Routing Number Guide to Next-Day Availability Checks and Local Checks SIXTH FEDERAL RESERVE DISTRICT [Federal Reserve Bank of Atlanta] Head Office 0610 2610 0611 2611 0612 2612 0613 2613 0620 2620 0621 2621 0622 2622 0640 2640 0641 2641 0642 2642 0650 2650 0651 2651 0652 2652 0653 2653 0654 2654 0655 2655 0820 2820 0829 2829 0840 2840 0841 2841 0842 2842 0843 2843 Jacksonville Branch 0630 2630 0631 2631 0632 2632 0660 2660 0670 2670 EIGHTH FEDERAL RESERVE DISTRICT [Federal Reserve Bank of St. Louis] Head Office 0810 2810 0812 2812 0815 2815 0819 2819 0865 2865 By order of the Board of Governors of the Federal Reserve System, acting through the Secretary of the Board under delegated authority, May 13, 2008. Jennifer J. Johnson, Secretary of the Board. [FR Doc. E8-10973 Filed 5-15-08; 8:45 am] BILLING CODE 6210-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2007-0022; Airspace Docket 07-AEA-07] Amendment of Class E Airspace; Waynesburg, PA AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; correction. SUMMARY: This action amends the Class E airspace area at Waynesburg, PA, to accommodate a new Standard Instrument Approach Procedure

(SIAP)that has been developed for Green County Airport. As a result, controlled airspace extending upward from 700 feet Above Ground Level

(AGL)will be expanded to contain the SIAP and other Instrument Flight Rules

(IFR)operations at Green County Airport. The operating status of the airport will change from Visual Flight Rules

(VFR)to include IFR operations concurrent with the publication of the SIAP. A minor correction is also being made in the geographic position coordinates of the Green County Airport. DATES: Effective 0901 UTC, June 5, 2008. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Melinda Giddens, System Support, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone

(404)305-5610. SUPPLEMENTARY INFORMATION: History On February 21, 2008, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by modifying the Class E airspace area at Waynesburg, PA (73 FR 9504). The proposed action would provide additional controlled airspace to accommodate RNAV

(GPS)approaches for Runway 09/27 at the Green County Airport. After publication, a minor error was discovered in the geographic coordinates of the airport. This action also corrects that error. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class E airspace areas extending from 700 feet or more above the surface of the earth are published in paragraphs 6005 of FAA Order 7400.96, signed August 14, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The class airspace designation listed in this document will be published subsequently in the Order. The Rule The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to modify Class E airspace at Waynesburg, PA, by providing additional controlled airspace for aircraft executing the RNAV

(GPS)Runway 09/27 to the Green County Airport. This action also corrects the geographic position coordinates of the airport. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore,

(1)is not a “significant regulatory action” under Executive Order 12866;

(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and

(3)does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in the Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class E Airspace at Waynesburg, PA. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9R, Airspace Designations and Reporting Points, signed August 15, 2007, and effective September 15, 2007, is amended as follows: *Paragraph 6005 Class E Airspace Areas Extending Upward from 700 feet or More Above the Surface of the Earth.* AEA PA E5 Waynesburg, PA [Revised] Green County Airport, PA (Lat. 39°54′04″ N., long. 80°07′51″ W.) That airspace extending upward from 700 feet above the surface of the Earth within an 8.3-mile radius of Green County Airport. Issued in College Park, Georgia, on April 21, 2008. Lynda G. Otting, Acting Manager, System Support Group, Eastern Service Center, Air Traffic Organization. [FR Doc. E8-10425 Filed 5-15-08; 8:45 am] BILLING CODE 4910-13-M DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0366] Security Zone; Portland Rose Festival on Willamette River AGENCY: Coast Guard, DHS. ACTION: Notice of enforcement of regulation. SUMMARY: The Coast Guard will enforce the Portland Rose Festival Security Zone on the Willamette River from 1 a.m. on June 4, 2008 until 10 a.m. June 10, 2008. This action is necessary for the security of public vessels on a portion of the Willamette River during the fleet week of the Rose Festival. This security zone provides for the regulation of vessel traffic in the vicinity of the moored public vessels. During the enforcement period, entry into this zone is prohibited unless authorized by the Captain of the Port or his designee. DATES: The regulations in 33 CFR 165.1312 will be enforced commencing from 1 a.m. on June 4, 2008 until 10 a.m. June 10, 2008. FOR FURTHER INFORMATION CONTACT: MST1 Lucia Mack, Coast Guard Sector Portland, 6767 N. Basin Ave, Portland, OR 97217, telephone 503-240-9311. SUPPLEMENTARY INFORMATION: The Coast Guard will enforce the Rose Festival Security Zone established by 33 CFR 165.1312 from 1 a.m. on June 4, 2008 until 10 a.m. June 10, 2008. Under the provisions of 33 CFR 165.33 a vessel may not enter the regulated area, unless it receives permission from the Captain of the Port or his designee. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation. This notice is issued under authority of 33 CFR 165.1312 and 5 U.S.C. 552(a). In addition to this notice in the **Federal Register** , the Coast Guard will provide the maritime community with extensive advance notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts. Dated: May 6, 2008. F.G. Myer, Captain, U.S. Coast Guard, Captain of the Port, Portland. [FR Doc. E8-10921 Filed 5-15-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 52 [EPA-HQ-OAR-2003-0062; FRL-8566-1] RIN 2060-AN86 Implementation of the New Source Review

(NSR)Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 ) AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The EPA is finalizing regulations to implement the New Source Review

(NSR)program for fine particulate matter (that is, particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers, generally referred to as “PM 2.5 ”). The NSR program was created by the Clean Air Act (Act or CAA) to ensure that stationary sources of air pollution are constructed or modified in a manner that is consistent with air quality goals in the area. The Clean Air Fine Particle Implementation Rule, which was proposed in the **Federal Register** on November 1, 2005, included requirements and guidance for State and local air pollution agencies to follow in developing State implementation plans

(SIPs)and also the NSR provisions. The final implementation rule that was promulgated on April 25, 2007, included all the SIPs related provisions. In this rulemaking, EPA is finalizing the NSR provisions of the November 1, 2005 proposed rule including the major source threshold, significant emissions rate, and offset ratios for PM 2.5 , interpollutant trading for offsets and applicability of NSR to PM 2.5 precursors. DATES: This final rule is effective on July 15, 2008. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2003-0062. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information may not be publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Air Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue, Northwest, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air Docket is

(202)566-1742. FOR FURTHER INFORMATION CONTACT: Mr. Raghavendra

(Raj)Rao, Air Quality Policy Division, Office of Air Quality Planning and Standards (C504-03), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number:

(919)541-5344, facsimile number:

(919)541-5509, e-mail address: *rao.raj@epa.gov;* or Mr. Dan deRoeck, at the same address, telephone 919-541-5593, or e-mail at *deroeck.dan@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? Entities affected by this rule include sources in all industry groups. The majority of sources potentially affected are expected to be in the following groups: Industry group NAICS a Electric services 221111, 221112, 221113, 221119, 221121, 221122 Petroleum refining 32411 Industrial inorganic chemicals 325181, 32512, 325131, 325182, 211112, 325998, 331311, 325188 Industrial organic chemicals 32511, 325132, 325192, 325188, 325193, 32512, 325199 Miscellaneous chemical products 32552, 32592, 32591, 325182, 32551 Natural gas liquids 211112 Natural gas transport 48621, 22121 Pulp and paper mills 32211, 322121, 322122, 32213 Paper mills 322121, 322122 Automobile manufacturing 336111, 336112, 336712, 336211, 336992, 336322, 336312, 33633, 33634, 33635, 336399, 336212, 336213 Pharmaceuticals 325411, 325412, 325413, 325414 a North American Industry Classification System. Entities affected by this rule also include States, local reviewing authorities, and Indian country with new and modified major stationary sources. B. Where can I get a copy of this document and other related information? In addition to being available in the docket, an electronic copy of this final rule will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this final rule will be posted in the regulations and standards section of our NSR home page located at *http://www.epa.gov/nsr.* C. How is this preamble organized? The information presented in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. Where can I get a copy of this document and other related information? C. How is this preamble organized? II. Purpose III. Background A. New Source Review

(NSR)Program B. Fine Particulate Matter and the NAAQS for PM 2.5 C. Implementation of NSR for PM 2.5 IV. Overview of This Final Action V. Rationale for Final Actions A. Applicability of NSR to Precursors of PM 2.5 in the Ambient Air 1. What is EPA's legal authority to regulate precursors? 2. What is EPA's approach for addressing precursors? 3. Final Action on SO 2 4. Final Action on NO X 5. Final Action on VOC 6. Final Action on Ammonia B. Major Stationary Source Threshold for PM 2.5 C. Significant Emissions Rate for Direct Emissions of PM 2.5 D. Significant Emissions Rates for PM 2.5 Precursors E. Condensable PM Emissions F. Prevention of Significant Deterioration

(PSD)Program Requirements 1. How must BACT be implemented for PM 2.5 ? 2. How does EPA plan to address PM 2.5 Increments, Significant Impact Levels (SILs), and Significant Monitoring Concentrations (SMCs)? 3. What is the ambient air quality analysis requirement for PM 2.5 ? 4. How must the PSD preconstruction monitoring requirement be implemented for PM 2.5 ? G. Nonattainment New Source Review (NA NSR) Requirements 1. What is the required offset ratio for direct PM 2.5 emissions? 2. Which precursors are subject to the offset requirement? 3. What is the required offset ratio for PM 2.5 precursors? 4. Is interpollutant trading allowable to comply with offset requirements? H. How will the transition to the PM 2.5 PSD requirements occur? 1. Background 2. Transition for “Delegated States” 3. Transition for “SIP-Approved States” I. How will the transition to the PM 2.5 NA NSR requirements occur? 1. Background 2. Transition 3. Implementation of NSR Under the “Emissions Offset Interpretative Ruling” (40 CFR part 51, appendix S) with Revisions J. Does major NSR apply to PM 2.5 precursors during the SIP development period? K. Are there any Tribal concerns? L. What are the requirements for minor NSR for PM 2.5 ? M. Rural Transport Areas VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132—Federalism F. Executive Order 13175—Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045—Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211—Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898—Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act L. Petitions for Judicial Review M. Determination Under Section 307(d) VII. Statutory Authority II. Purpose The purpose of this rulemaking is to finalize the major NSR program provisions for PM 2.5 . This final rule supplements the final implementation rule for PM 2.5 (excluding the NSR provisions) that we 1 promulgated on April 25, 2007 at 72 FR 20586. This final action on the bulk of the major NSR program for PM 2.5 along with our proposed rule on increments, SILs, and SMC, when final, will represent the final elements necessary to implement a PM 2.5 PSD program. When both rules are promulgated and in effect, the PM 2.5 PSD program will no longer use a PM 10 program as a surrogate, as has been the practice under our existing guidance. 1 In this proposal, the terms “we,” “us,” and “our,” refer to the EPA and the terms “you,” and “your,” refer to the owners or operators of stationary sources of air pollution. III. Background A. New Source Review

(NSR)Program The existing regulations require both major and minor NSR programs to address any pollutant for which there is a National Ambient Air Quality Standard (NAAQS) and precursors to the formation of such pollutant when identified for regulation by the Administrator. This final rule amends the NSR regulations to establish the minimum elements for State, local, and Tribal agency programs implementing NSR for the PM 2.5 NAAQS. This preamble also explains what interim provisions would apply with respect to PM 2.5 during the State Implementation Plan

(SIP)development period. The NSR program is a preconstruction permitting program that applies when a source is constructed or modified. The NSR program is composed of three different programs: • Prevention of Significant Deterioration (PSD); • Nonattainment NSR (NA NSR); and • Minor NSR. We often refer to the PSD and NA NSR programs together as the major NSR program because these programs regulate only major sources. 2 2 The Act uses the terms “major emitting facility” to refer to sources subject to the PSD program, and “major stationary source” to refer to sources subject to NA NSR. *See* CAA sections 165, 169, 172(c)(5), and 302(j). For ease of reference, we use the term “major source” to refer to both terms. The PSD program applies when a major source that is located in an area that is designated as attainment or unclassifiable for any criteria pollutant is constructed or undergoes a major modification. 3 4 The NA NSR program applies when a major source that is located in an area that is designated as nonattainment for any criteria pollutant is constructed or undergoes a major modification. The minor NSR program addresses both major and minor sources that undertake construction or modification activities that do not qualify as major, and it applies regardless of the designation of the area in which a source is located. 3 The term “criteria pollutant” means a pollutant for which we have set a NAAQS. 4 In addition, the PSD program applies to most noncriteria regulated pollutants. The national regulations that apply to each of these programs are located in the Code of Federal Regulations

(CFR)as shown in the following table: Program Applicable regulations PSD 40 CFR 52.21, 40 CFR 51.166, 40 CFR 51.165(b). NA NSR 40 CFR 52.24, 40 CFR 51.165, 40 CFR part 51, appendix S. Minor NSR 40 CFR 51.160-164. The PSD requirements include but are not limited to: • Installation of Best Available Control Technology (BACT); • Air quality monitoring and modeling analyses to ensure that a project's emissions will not cause or contribute to a violation of any NAAQS or maximum allowable pollutant increase (PSD increment); • Notification of Federal Land Manager of nearby Class I areas; and • Public comment on the permit. Nonattainment NSR requirements include but are not limited to: • Installation of Lowest Achievable Emission Rate

(LAER)control technology; • Offsetting new emissions with creditable emissions reductions; • Certification that all major sources owned and operated in the State by the same owner are in compliance with all applicable requirements under the Act; • An alternative siting analysis demonstrating that the benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification; and • Public comment on the permit. Minor NSR programs must meet the statutory requirements in section 110(a)(2)(C) of the Act, which requires “* * * regulation of the modification and construction of any stationary source * * * as necessary to assure that national ambient air quality standards are achieved.” B. Fine Particulate Matter and the NAAQS for PM 2.5 Fine particles in the atmosphere are made up of a complex mixture of components. Common constituents include sulfate (SO 4 ); nitrate (NO 3 ); ammonium; elemental carbon; a great variety of organic compounds; and inorganic material (including metals, dust, sea salt, and other trace elements) generally referred to as “crustal” material, although it may contain material from other sources. Airborne particulate matter

(PM)with a nominal aerodynamic diameter of 2.5 micrometers or less (a micrometer is one-millionth of a meter, and 2.5 micrometers is less than one-seventh the average width of a human hair) are considered to be “fine particles,” and are also known as PM 2.5 . “Primary” particles are emitted directly into the air as a solid or liquid particle ( *e.g.* , elemental carbon from diesel engines or fire activities, or condensable organic particles from gasoline engines). “Secondary” particles ( *e.g.* , sulfate and nitrate) form in the atmosphere as a result of various chemical reactions. The health effects associated with exposure to PM 2.5 are significant. Epidemiological studies have shown a significant correlation between elevated PM 2.5 levels and premature mortality. Other important effects associated with PM 2.5 exposure include aggravation of respiratory and cardiovascular disease (as indicated by increased hospital admissions, emergency room visits, absences from school or work, and restricted activity days), lung disease, decreased lung function, asthma attacks, and certain cardiovascular problems. Individuals particularly sensitive to PM 2.5 exposure include older adults, people with heart and lung disease, and children. On July 18, 1997, we revised the NAAQS for PM to add new standards for fine particles, using PM 2.5 as the indicator. We established health-based (primary) annual and 24-hour standards for PM 2.5 (62 FR 38652). We set an annual standard at a level of 15 micrograms per cubic meter (μg/m 3 ) and a 24-hour standard at a level of 65 μg/m 3 . At the time we established the primary standards in 1997, we also established welfare-based (secondary) standards identical to the primary standards. The secondary standards are designed to protect against major environmental effects of PM 2.5 such as visibility impairment, soiling, and materials damage. On October 17, 2006, we revised the primary and secondary NAAQS for PM 2.5 and PM 10 . In that rulemaking, we reduced the 24-hour NAAQS for PM 2.5 to 35 μg/m 3 and retained the existing annual PM 2.5 NAAQS of 15 μg/m 3 . In addition, we retained PM 10 as the indicator for coarse PM, retained the existing PM 10 24-hour NAAQS of 150 μg/m 3 , and revoked the annual PM 10 NAAQS (which had previously been set at 50 μg/m 3 ). *See* 71 FR 61236. C. Implementation of NSR for PM 2.5 After we promulgated the NAAQS for PM 2.5 in 1997, we issued a guidance document entitled “Interim Implementation for the New Source Review Requirements for PM 2.5 ” (John S. Seitz, EPA, October 23, 1997). 5 As noted in that guidance, section 165 of the Act suggests that PSD requirements become effective for a new NAAQS upon the effective date of the NAAQS. Section 165(a)(1) of the Act provides that no new or modified major source may be constructed without a PSD permit that meets all of the section 165(a) requirements with respect to the regulated pollutant. Moreover, section 165(a)(3) provides that the emissions from any such source may not cause or contribute to a violation of any NAAQS. Also, section 165(a)(4) requires BACT for each pollutant subject to PSD regulation. The 1997 guidance stated that sources would be allowed to use implementation of a PM 10 program as a surrogate for meeting PM 2.5 NSR requirements until certain difficulties were resolved, primarily the lack of necessary tools to calculate the emissions of PM 2.5 and related precursors, the lack of adequate modeling techniques to project ambient impacts, and the lack of PM 2.5 monitoring sites. 5 Available in the docket for this rulemaking, ID No. EPA-HQ-OAR-2003-0062, and at *http://www.epa.gov/region07/programs/artd/air/nsr/nsrmemos/pm25.pdf* . On April 5, 2005, we issued a guidance document entitled “Implementation of New Source Review Requirements in PM-2.5 Nonattainment Areas” (Stephen D. Page, EPA). 6 This memorandum provides guidance on the implementation of the nonattainment major NSR provisions in PM 2.5 nonattainment areas in the interim period between the effective date of the PM 2.5 NAAQS designations (April 5, 2005) and the promulgation date of the final NSR regulations reflected in this action. Besides affirming the continuation of the Seitz guidance memo in PM 2.5 attainment areas, the April 5, 2005 memo recommends that until we promulgate the PM 2.5 major NSR regulations, States should use a PM 10 nonattainment major NSR program as a surrogate to address the requirements of nonattainment major NSR for PM 2.5 . 6 Available in the docket for this rulemaking, ID. No. EPA-HQ-OAR-2003-0062, and at *http://www.epa.gov/nsr/documents/nsrmemo.pdf* . On November 1, 2005, we proposed a rule to implement the 1997 PM 2.5 NAAQS, including proposed revisions to the NSR program (70 FR 65984). As discussed above, this action finalizes the portion of that proposal related to NSR. The other portions of that proposal, concerning attainment dates, SIP submittals, reasonable further progress

(RFP)requirements, etc., were finalized on April 25, 2007 (72 FR 20586). On September 21, 2007, we proposed additional elements for the PSD program for PM 2.5 including PM 2.5 “increments,” significant impact levels (SILs), and significant monitoring concentrations

(SMCs)(72 FR 54112). Increments are the maximum allowable increases over baseline concentrations that can be permitted to occur when a major source is constructed or modified. This is one mechanism by which the PSD program prevents significant deterioration in air quality. A SIL defines the level of ambient air impact that is considered a “significant contribution” to air quality. If the modeled maximum ambient impacts of a new source or modification are below the SILs, the source:

(1)Is presumed not to cause or contribute significantly to a PSD increment or NAAQS violation, and

(2)is not required to perform the multiple-source, cumulative impacts assessments that are otherwise required under PSD. An SMC defines the level of modeled ambient air impact below which the reviewing authority may exempt a new or modified source from conducting the preconstruction monitoring that may otherwise be required under PSD. The reviewing authority may also exempt the source from preconstruction monitoring if the existing monitored ambient concentration is less than the SMC. This final action on the bulk of the major NSR program for PM 2.5 along with our proposed rule on increments, SILs, and SMC, when final, will represent the final elements necessary to implement a PM 2.5 PSD program. When both rules are promulgated and in effect, the PM 2.5 PSD program will no longer use a PM 10 program as a surrogate, as has been the practice under our existing guidance. IV. Overview of This Final Action The table below summarizes the main elements of the existing NSR program that this action addresses for PM 2.5 as a regulated NSR pollutant. The table indicates our final position on an issue and whether our position has changed based on comments received. Our final action for each element, or where appropriate, explanation of implementation under existing regulations, is addressed in detail in the referenced sections of this preamble. NSR program element Final action Section Applicability to PM 2.5 precursors SO 2 —Must be regulated as precursor, NO X —Presumed regulated, VOC—Presumed not regulated, Ammonia—Presumed not regulated V.A PSD major source threshold 100/250 tons per year

(tpy)V.B NA NSR major source threshold 100 tpy V.B Significant emissions rate Direct PM 2.5 emissions—10 tpy, SO 2 precursor—40 tpy, NO X precursor—40 tpy, if regulated V.C & V.D Condensable PM 2.5 emissions Included in direct PM 2.5 emissions for major NSR applicability determinations after the end of the transition period (changed based on comments received) V.E Control technology: BACT and LAER Applies for direct PM 2.5 emissions, SO 2 , and other precursors if regulated. V.F.1 & V.G Prevention of significant deterioration Increments, SILs and SMCs covered in a separate rulemaking V.F.2 Air quality impact analysis Applies for PM 2.5 V.F.3 Preconstruction monitoring Applies for PM 2.5 (finalizing options 1 & 3) V.F.4 NA NSR Statewide compliance and alternative siting analyses Applies for direct PM 2.5 emissions and precursors, if regulated V.G NA NSR offsets Applies for direct PM 2.5 emissions and precursors, if regulated V.G.1-3 Interpollutant offsetting Allowed on a regional or statewide basis; EPA is issuing guidance with recommended regional hierarchies and trading ratios (changed based on comments received) V.G.4 Transition for PSD Continues to use PM 10 as a surrogate V.H Transition for NA NSR Applies through an approved SIP or through 40 CFR part 51, appendix S V.I SIP development period Clarifies that major NSR does not apply to precursors during the SIP development period in attainment areas (changed based on comments received) V.J Tribal concerns Cross references to proposed NSR rules for Indian country V.K Minor NSR Clarifies that State and local regulatory programs must include PM 2.5 requirements for minor sources V.L NSR transport option Transport classification not available V.M The provisions of the PM 2.5 major NSR program finalized in this action are codified as revisions in the previously existing regulatory text. The revisions to NA NSR are codified in 40 CFR 51.165 and appendix S to 40 CFR part 51. The PSD revisions are codified in 40 CFR 51.166 and 52.21. V. Rationale for Final Actions In this section we discuss each element of our proposal for this rulemaking, explain our final action, discuss the rationale for our final action, and summarize the major public comments we received. The full summary of public comments on the proposal, along with our responses, can be found in the docket for this rulemaking. 7 7 *See* “Implementation of the New Source Review

(NSR)Program for Particulate Matter Less Than 2.5 Micrometers in Diameter (PM 2.5 ); Response to Comments,” U.S. Environmental Protection Agency. It can be viewed or downloaded at *www.regulations.gov* , Docket ID No. EPA-HQ-OAR-2003-0062. A. Applicability of NSR to Precursors of PM 2.5 in the Ambient Air Scientific research has shown that various pollutants can contribute to ambient PM 2.5 concentrations. In addition to direct PM 2.5 emissions, these include the following precursors: • Sulfur dioxide (SO 2 ); • Oxides of nitrogen (NO X ); • Volatile organic compounds (VOC); and • Ammonia. These gas-phase precursors undergo chemical reactions in the atmosphere to form secondary PM. Formation of secondary PM depends on numerous factors including the concentrations of precursors; the concentrations of other gaseous reactive species; atmospheric conditions including solar radiation, temperature, and relative humidity; and the interactions of precursors with preexisting particles and with cloud or fog droplets. Several atmospheric aerosol species, such as ammonium nitrate and certain organic compounds, are semi-volatile and are found in both gas and particle phases. Given the complexity of PM formation processes, new information from the scientific community continues to emerge to improve our understanding of the relationship between sources of PM precursors and secondary particle formation. Precursors contribute significantly to ambient PM 2.5 concentrations, producing approximately half of the concentration nationally. In most areas of the country, PM 2.5 precursor emissions are major contributors to ambient PM 2.5 concentrations. The relative contribution to ambient PM 2.5 concentrations from each of these pollutants varies by area. The relative effect of reducing emissions of these pollutants is also highly variable. Some PM 2.5 precursors are already subject to major NSR under other NAAQS, as shown in the following table: PM 2.5 precursor Existing program coverage for major NSR applicability NO X NA NSR and PSD for NO 2 and Ozone. SO 2 NA NSR and PSD for SO 2 . VOC NA NSR and PSD for Ozone. Ammonia No coverage for NSR. In the subsections that follow, we first discuss our legal authority under the Act for regulating precursors to the formation of criteria pollutants, and then discuss our final action for each of the PM 2.5 precursors. 1. What is EPA's legal authority to regulate precursors? As we discussed in the November 1, 2005 proposal, we interpret the Act to not only provide explicit authority for EPA to regulate precursors, but also to grant us discretion to determine how to address precursors for particular regulatory purposes. This reading is based on section 302(g) of the Act, which defines the term “air pollutant” to include “any precursors to the formation of any air pollutant, to the extent the Administrator has identified such precursor or precursors for the particular purpose for which the term ‘air pollutant’ is used.” The first clause of this second sentence in section 302(g) explicitly authorizes the Administrator to identify and regulate precursors as air pollutants under other parts of the Act. In addition, the second clause of the sentence indicates that the Administrator has discretion to identify which pollutants should be classified as precursors for particular regulatory purposes. Thus, we do not necessarily construe the Act to require that EPA identify a particular precursor as an air pollutant for all regulatory purposes where it can be demonstrated that various programs under the Act address different aspects of the air pollutant problem. Likewise, we do not interpret the Act to require that EPA treat all precursors of a particular pollutant the same under any one program when there is a basis to distinguish between such precursors within that program. For example, in a recent rule addressing PM 2.5 precursors for purposes of the transportation conformity program, we chose to adopt a different approach for one precursor based on the limited emissions of that precursor from onroad mobile sources and the degree to which it contributes to PM 2.5 concentrations (70 FR 24280, May 6, 2005). Other provisions of the Act reinforce our reading of section 302(g) to mean that Congress intended precursors to NAAQS pollutants to be subject to the air quality planning and control requirements of the Act, but also recognized that there may be circumstances where it is not appropriate to subject precursors to certain requirements of the Act. Section 182 of the Act provides for the regulation of NO X and VOC as precursors to ozone in ozone nonattainment areas, but also provides in section 182(f) that major stationary sources of NO X (an ozone precursor) are not subject to emission reduction requirements for ozone where the State shows through modeling that NO X reductions do not decrease ozone. Section 189(e) provides for the regulation of PM 10 precursors in PM 10 nonattainment areas, but also recognizes that there may be certain circumstances ( *e.g.* , if precursor emission sources do not significantly contribute to PM 10 levels) where it is not appropriate to apply control requirements to PM 10 precursors. The legislative history of section 189(e) recognized the complexity behind the science of precursor transformation into PM 10 ambient concentrations and the need to harmonize the regulation of PM 10 precursors with other provisions of the Act: The Committee notes that some of these precursors may well be controlled under other provisions of the CAA. The Committee intends that * * * the Administrator will develop models, mechanisms, and other methodology to assess the significance of the PM 10 precursors in improving air quality and reducing PM 10 . Additionally, the Administrator should consider the impact on ozone levels of PM 10 precursor controls. The Committee expects the Administrator to harmonize the PM 10 reduction objective of this section with other applicable regulations of this CAA regarding PM 10 precursors, such as NO X . *See* H. Rpt. 101-490, Pt. 1, at 268 (May 17, 1990), reprinted in S. Prt. 103-38, Vol. II, at 3292. In summary, section 302(g) of the Act clearly calls for the regulation of precursor pollutants, but the Act also identifies circumstances when it may not be appropriate to regulate precursors and gives the Administrator discretion to determine how to address particular precursors under various programs required by the Act. Due to the complexities associated with precursor emissions and their variability from location to location, we believe that in certain situations it may not be effective or appropriate to control a certain precursor under a particular regulatory program or for EPA to require similar control of a particular precursor in all areas of the country. The term “air pollutant,” as defined in section 302(g), is incorporated into the NSR provisions for various purposes. Thus, we interpret section 302(g) of the Act to require us to consider how to address precursors under the NSR program. With regard to PSD, section 165(a)(3) of the Act states that new or modified major sources must demonstrate that emissions “will not cause, or contribute to, air pollution in excess of any * * * NAAQS in any air quality control region * * *.” A source could not reasonably make this demonstration without considering precursors that EPA has identified for this purpose. Section 165(a)(4) of the Act states that a new or modified source must apply BACT “for each pollutant subject to regulation under this Act emitted from, or which results from, such facility.” The phrase “emitted from, or which results from” indicates that the statute is not limited to direct emissions, but rather extends to precursors as well. With regard to NA NSR, sections 172(c)(4) and 173 require States to demonstrate, among other things, that emissions from new or modified major sources are consistent with the achievement of “reasonable further progress.” Reasonable further progress is further defined as reductions of the relevant air pollutant, which is defined in section 302(g) to include precursors identified by EPA as subject to regulation for that purpose. 2. What is EPA's approach for addressing precursors? As proposed, we are finalizing different approaches for addressing the individual precursors to PM 2.5 under the Act's NSR provisions. Generally, where the scientific data and modeling analyses provide reasonable certainty that the pollutant's emissions are a significant contributor to ambient PM 2.5 concentrations, we believe that pollutant should be identified as a “regulated NSR pollutant” and subject to the PM 2.5 NSR provisions. Conversely, where the effect of a pollutant's emissions on ambient PM 2.5 concentrations is subject to substantial uncertainty, such that in some circumstances the pollutant may not result in formation of PM 2.5 , or control of the pollutant may have no effect or may even aggravate air quality, we generally believe it is unreasonable to establish a nationally-applicable presumption that the pollutant is a regulated NSR pollutant subject to the requirements of NSR for PM 2.5 . We discuss our final action with respect to each of the PM 2.5 precursors and the basis for that action in sections V.A.2 through 5. For those precursors that are either presumed to be regulated or not regulated (NO X , VOC, and ammonia), a State program need not follow the presumed approach if it can be demonstrated that the precursor in question is not, or is, a “significant contributor” to PM 2.5 concentrations within the specific area. “Significant contribution” in this context is a different concept than that in section 110(a)(2)(D) of the Act. Section 110(a)(2)(D) of the Act prohibits States from emitting air pollutants in amounts which significantly contribute to nonattainment or other air quality problems in other States. Consistent with the previous discussion of sections 189(e) and 302(g), we are clarifying that the use in this NSR implementation rule of the term “significant contribution” to the area's PM 2.5 concentration means that a significant change in emissions of the precursor from sources in the area would be projected to provide a significant change in PM 2.5 concentrations in the area. For example, if modeling indicates that a reduction in an area's NO X emissions would reduce ambient PM 2.5 levels in the area, but that a reduction in ammonia emissions would result in virtually no change in ambient PM 2.5 levels, this would suggest that NO X is a significant contributor but that ammonia is not. We are not establishing in this rule a quantitative test for determining whether PM 2.5 levels in an area change significantly in response to reductions in precursor emissions in the area. However, in considering this question, it is relevant to consider that relatively small reductions in PM 2.5 levels are estimated to result in worthwhile public health benefits. This approach to identifying a precursor as a regulated NSR pollutant reflects atmospheric chemistry conditions in the area and the magnitude of emissions of the precursor in the area. Assessments of whether it is technically feasible and cost effective to control particular emissions units at a source should be part of the later BACT determination within a permit action, and should occur after the basic assessment of which precursors are to be regulated NSR pollutants in an area is completed. Most commenters did not question our legal authority to identify and regulate PM 2.5 precursors. However, some commenters argued, based on the language of sections 302(g) and 189(e) of the Act, that once we have designated a compound as a precursor, we do not have discretion to presumptively exclude it from NSR requirements. Other commenters on this issue indicated that we do have such discretion, based on the *de minimis* doctrine of the *Alabama Power* decision or on practical implementation considerations such as the uncertainty in measuring and modeling the effect of PM 2.5 precursors. We do not agree with the comment that the Act does not give us discretion to presumptively exclude a PM 2.5 precursor from NSR requirements. As stated previously, we believe that section 302(g) allows the Administrator to presumptively not require certain precursors to be addressed in PM 2.5 NSR programs generally, while allowing the State or EPA to make a finding for a specific area to override the general presumption. In the following pollutant-specific sections of this preamble, we find that at this time there is sufficient uncertainty regarding whether certain precursors significantly contribute to PM 2.5 concentrations in all areas such that the policy set forth in this rule does not presumptively require certain precursors (ammonia, VOC) to be controlled in each area. However, the State or EPA may reverse the presumption and regulate a precursor if it provides a demonstration showing that the precursor is a significant contributor to PM 2.5 concentrations in the area. In addition, if in the State's NSR program adoption process a commenter provides additional information suggesting an alternative policy for regulating a particular precursor, the State will need to respond to this information in its rulemaking action. Hence, we continue to believe that the Act provides us the authority not only to identify and regulate precursors to PM 2.5 , but also to treat precursors of the same pollutant differently under the same program. 3. Final Action on SO 2 Sulfur dioxide is emitted mostly from the combustion of fossil fuels in boilers operated by electric utilities and other industrial sources. Less than 20 percent of SO 2 emissions nationwide are from other sources, mainly other industrial processes such as oil refining and pulp and paper production. The formation of sulfuric acid from the oxidation of SO 2 is an important process affecting most areas in North America. There are three different pathways for this transformation. First, gaseous SO 2 can be oxidized by the hydroxyl radical

(OH)to create sulfuric acid. This gaseous SO 2 oxidation reaction occurs slowly and only in the daytime. Second, SO 2 can dissolve in cloud water (or fog or rainwater), and there it can be oxidized to sulfuric acid by a variety of oxidants, or through catalysis by transition metals such as manganese or iron. If ammonia is present and taken up by the water droplet, then ammonium sulfate will form as a precipitate in the water droplet. After the cloud changes and the droplet evaporates, the sulfuric acid or ammonium sulfate remains in the atmosphere as a particle. This aqueous phase production process involving oxidants can be very fast; in some cases all the available SO 2 can be oxidized in less than an hour. Third, SO 2 can be oxidized in reactions in the particle-bound water in the aerosol particles themselves. This process takes place continuously, but only produces appreciable sulfate in alkaline (dust, sea salt) coarse particles. Oxidation of SO 2 has also been observed on the surfaces of black carbon and metal oxide particles. During the last 20 years, much progress has been made in understanding the first two major pathways, but some important questions still remain about the smaller third pathway. Models indicate that more than half of the sulfuric acid in the eastern United States and in the overall atmosphere is produced in clouds. The sulfuric acid formed from these pathways reacts readily with ammonia to form ammonium sulfate, (NH 4 ) 2 SO 4 . If there is not enough ammonia present to fully neutralize the produced sulfuric acid (one molecule of sulfuric acid requires two molecules of ammonia), part of it exists as ammonium bisulfate; NH 4 HSO 4 (one molecule of sulfuric acid and one molecule of ammonia) and the particles are more acidic than ammonium sulfate. In certain situations (in the absence of sufficient ammonia for neutralization), sulfate can exist in particles as sulfuric acid, H 2 SO 4 . Sulfuric acid often exists in the plumes of stacks where SO 2 , sulfur trioxide (SO 3 ), and water vapor are in much higher concentrations than in the ambient atmosphere, but these concentrations become quite small as the plume is cooled and diluted by mixing. Because sulfate is a significant component ( *e.g.* , ranging from 9 percent to 40 percent) of PM 2.5 concentrations, and contributes to other air quality problems in all regions of the country, we proposed to require States to treat SO 2 as a PM 2.5 precursor in all areas. We are retaining the same approach for SO 2 in this final rule. Sulfate is an important precursor to PM 2.5 formation in all areas, and has a strong regional impact on PM 2.5 concentrations. This approach is consistent with past EPA regulations, such as the Clean Air Interstate Rule (CAIR), the Clean Air Visibility Rule, the Acid Rain rules, and the Regional Haze rule, each of which require SO 2 reductions to address fine particle pollution and related air quality problems. Finally, we do not believe that regulating SO 2 as a precursor to PM 2.5 is likely to add a major burden to sources, as SO 2 is already regulated as part of the NSR program for the SO 2 NAAQS. Most commenters who addressed this issue agreed that SO 2 should be regulated as a PM 2.5 precursor, although one only supported regulation of SO 2 as a precursor in NA NSR, and not under PSD. Two commenters disagreed that SO 2 acts as precursors to PM 2.5 in all cases and indicated that it should not be regulated as an “always-in” precursor. We find the commenters' arguments against regulating SO 2 as a precursor unpersuasive. Sulfate is a significant fraction of PM 2.5 mass in all nonattainment areas currently, and although large SO 2 reductions are projected from electric generating units with the implementation of the CAIR program, sulfate is still projected to be a key contributor to PM 2.5 concentrations in the future, in both attainment and nonattainment areas. Sulfur dioxide emissions also lead to sulfate formation on both regional and local scales. 4. Final Action on NO X The sources of NO X are numerous and widespread. The combustion of fossil fuel generates the majority of NO X emissions, with large contributions from power generation and mobile sources. Nitrates are formed from the oxidation of NO X into nitric acid (HNO 3 ) either during the daytime (reaction with OH) or during the night (reactions with ozone and water). Nitric acid continuously transfers between the gas and the condensed phases through condensation and evaporation processes in the atmosphere. However, unless it reacts with other species (such as ammonia, sea salt, or dust) to form a neutralized salt, it will volatilize and not be measured using standard PM 2.5 measurement techniques. The formation of aerosol ammonium nitrate is favored by the availability of ammonia, low temperatures, and high relative humidity. Because ammonium nitrate is semivolatile and not stable in higher temperatures, nitrate levels are typically lower in the summer months and higher in the winter months. The resulting ammonium nitrate is usually in the sub-micrometer particle size range. Reactions with sea salt and dust lead to the formation of nitrates in coarse particles. Nitric acid may be dissolved in ambient aerosol particles. Based on a review of speciated monitoring data analyses, it is apparent that nitrate concentrations vary significantly across the country. For example, in some southeastern locations, annual average nitrate levels are in the range of 6 to 8 percent of total PM 2.5 mass, whereas nitrate comprises 40 percent or more of PM 2.5 mass in certain California locations. Nitrate formation is favored by the availability of ammonia, low temperatures, and high relative humidity. It is also dependent upon the relative degree of nearby SO 2 emissions because ammonia reacts preferentially with SO 2 over NO X . Reductions in NO X emissions are expected to reduce PM 2.5 concentrations in most areas. However, it has been suggested that in a limited number of areas, NO X control would result in increased PM 2.5 mass by disrupting the ozone cycle and leading to increased oxidation of SO 2 to form sulfate particles, which are heavier than nitrate particles. Because of these factors, we are finalizing our proposed approach to NO X as a precursor to PM 2.5 for the NSR program. Under this approach, NO X is presumed to be a significant contributor to ambient PM 2.5 concentrations in all PSD and NA NSR areas. However, a State or EPA may rebut this presumption for a specific area if the State demonstrates to the Administrator's satisfaction or EPA demonstrates that NO X emissions in that area are not a significant contributor to that area's ambient PM 2.5 concentrations. If a State or EPA makes such a demonstration, NO X would not be considered a PM 2.5 precursor under the NSR program in that area. If a State or EPA does not make such a demonstration, NO X must be regulated as a precursor under the PSD, NA NSR, and minor source programs for PM 2.5 . As discussed previously, this “presumed-in” approach is warranted based on the well-known transformation of NO X into nitrates, coupled with the fact that nitrate concentrations vary significantly around the country. This approach is consistent with other recent EPA regulations requiring NO X reductions, which will reduce fine particle pollution, such as the CAIR and a number of rules targeting onroad and nonroad engine emissions. We had proposed that NO X be presumed to be a precursor in any State that EPA has identified as a source of the PM 2.5 interstate transport problem. In the final rule, we have dropped this requirement to be consistent with EPA's Clean Air Fine Particle Implementation Rule published on April 25, 2007. 72 FR 20586. Such a requirement is not necessary in this rule because States that contribute to downwind nonattainment for PM 2.5 are otherwise required to address transported NO X emissions under the CAIR. In areas where NO X is regulated as a precursor to PM 2.5 , we do not believe that this is likely to add a major burden to sources, as NO X is already a regulated NSR pollutant. This is because NO X is an identified precursor for the ozone NAAQS and an indicator for the NO 2 NAAQS. Several commenters agreed that NO X should be regulated under major NSR as a precursor to PM 2.5 . Some of these commenters believe that States should not have the opportunity to demonstrate otherwise, or indicated that a waiver for exclusion of NO X as a precursor should be allowed only if downwind States approve such a waiver. A few commenters stated that NO X should not be regulated as a precursor to PM 2.5 in the major NSR program, either on grounds of scientific uncertainty regarding the impact of NO X emissions on ambient PM 2.5 concentrations or on policy grounds ( *i.e.* , because NO X is already regulated under NSR for other NAAQS). We are not persuaded by the argument that NO X should not be regulated as a PM 2.5 precursor because it is a regulated pollutant under other NAAQS. We do not find the degree of scientific uncertainty regarding PM 2.5 formation from NO X to be great enough to preclude regulation of NO X as a precursor with an opportunity for a case-by-case demonstration that NO X is not a significant contributor. Furthermore, the fact that we regulate NO X for other NAAQS under the NSR program does not by itself justify declining to regulate NO X as a PM 2.5 precursor in circumstances where NO X also significantly contributes to PM 2.5 formation. As noted earlier, the regulation of NO X as a precursor for PM 2.5 is not expected to add a major burden to regulated sources that are already required to limit NO X emission to meet other NAAQS. We disagree with the commenters who believe that emissions of NO X cannot be correlated to PM 2.5 formation, or that it is unclear when NO X acts as a precursor. As discussed previously, our decision to regulate NO X as a precursor to PM 2.5 is based on the well-known transformation of NO X into nitrates. Nevertheless, nitrate concentrations vary significantly across the country. As a result, we believe that the “presumed-in” approach is appropriate for NO X since a State can demonstrate that NO X should not be a precursor in a given area or region. While we recognize that NO X emissions can affect PM 2.5 concentrations in downwind areas, we disagree that approval from downwind States should be required for a State to exclude NO X as a PM 2.5 precursor for a particular area. This is because States that contribute to downwind nonattainment for PM 2.5 are otherwise required to address transported NO X emissions under the CAIR. 5. Final Action on VOC The organic component of ambient particles is a complex mixture of hundreds or even thousands of organic compounds. These organic compounds are either emitted directly from sources ( *i.e.* , primary organic aerosol) or can be formed by reactions in the ambient air ( *i.e.* , secondary organic aerosol, or SOA). Volatile organic compounds are key precursors in the formation processes for both SOA and ozone. The relative importance of organic compounds in the formation of secondary organic particles varies from area to area, depending upon local emissions sources, atmospheric chemistry, and season of the year. The lightest organic molecules ( *i.e.* , molecules with six or fewer carbon atoms) occur in the atmosphere mainly as vapors and typically do not directly form organic particles at ambient temperatures due to the high vapor pressure of their products. However, they participate in atmospheric chemistry processes resulting in the formation of ozone and certain free radical compounds (such as OH) which in turn participate in oxidation reactions to form SOA, sulfates, and nitrates. These VOCs include all alkanes with up to six carbon atoms (from methane to hexane isomers), all alkenes with up to six carbon atoms (from ethene to hexene isomers), benzene, and many low-molecular weight carbonyls, chlorinated compounds, and oxygenated solvents. Intermediate weight organic molecules ( *i.e.* , compounds with 7 to 24 carbon atoms) often exhibit a range of volatilities and can exist in both the gas and aerosol phase at ambient conditions. For this reason they are also referred to as semivolatile compounds. Semivolatile compounds react in the atmosphere to form SOA. These chemical reactions are accelerated in warmer temperatures, and studies show that SOA typically comprises a higher percentage of carbonaceous PM in the summer as opposed to the winter. The production of SOA from the atmospheric oxidation of a specific VOC depends on four factors: Its atmospheric abundance, its chemical reactivity, the availability of oxidants (ozone, OH, HNO 3 ), and the volatility of its products. In addition, recent work suggests that the presence of acidic aerosols may lead to an increased rate of SOA formation. Aromatic compounds such as toluene, xylene, and trimethyl benzene are considered to be the most significant anthropogenic SOA precursors and have been estimated to be responsible for 50 to 70 percent of total SOA in some airsheds. Man-made sources of aromatics gases include mobile sources, petrochemical manufacturing, and solvents. Some of the biogenic hydrocarbons emitted by trees are also considered to be important precursors of secondary organic PM. Terpenes (and b-pinene, limonene, carene, etc.) and the sesquiterpenes are expected to be major contributors to SOA in areas with significant vegetation cover, but isoprene is not. Terpenes are very prevalent in areas with pine forests, especially in the southeastern United States. The rest of the anthropogenic hydrocarbons (higher alkanes, paraffins, etc.) have been estimated to contribute 5 to 20 percent to the SOA concentration depending on the area. The contribution of the primary and secondary components of organic aerosol to the measured organic aerosol concentrations remains a complex issue. Most of the research performed to date has been done in southern California, and more recently in central California, while fewer studies have been completed on other parts of North America. Many studies suggest that the primary and secondary contributions to total organic aerosol concentrations are highly variable, even on short time scales. Studies of pollution episodes indicate that the contribution of SOA to the organic PM can vary from 20 percent to 80 percent during the same day. Despite significant advances in understanding the origins and properties of SOA, it remains probably the least understood component of PM 2.5 . The reactions forming secondary organics are complex, and the number of intermediate and final compounds formed is voluminous. Some of the best efforts to unravel the chemical composition of ambient organic aerosol matter have resulted in quantifying the concentrations of hundreds of organic compounds representing only 10 to 20 percent of the total organic aerosol mass. For this reason, SOA continues to be a significant topic of research and investigation. Current scientific and technical information shows that carbonaceous material is a significant fraction of total PM 2.5 mass in most areas, that certain VOC emissions are precursors to the formation of SOA, and that a considerable fraction of the total carbonaceous material originates from local as opposed to regional sources. However, while significant progress has been made in understanding the role of gaseous organic material in the formation of organic PM, this relationship remains complex. We recognize that further research and technical tools are needed to better characterize emissions inventories for specific VOC, and to determine the extent of the contribution of specific VOC to organic PM mass. As a result, this final rule does not, in general, require regulation of VOC as a precursor to PM 2.5 for the NSR program. However, a State may demonstrate to the Administrator's satisfaction or EPA may demonstrate that VOC emissions in a specific area are a significant contributor to that area's ambient PM 2.5 concentrations. After such a demonstration, the State would regulate VOC (or a subset of VOC) as a PM 2.5 precursor for the NSR program in that area. That is, the State would need to regulate construction and modification of stationary sources that increase emissions of VOC in that area to assure that these emissions do not interfere with reasonable further progress or the ability of that area to attain or maintain the PM 2.5 NAAQS. We believe that this “presumed-out” approach is appropriate for VOC because of the complexity in assessing the role of VOC in PM 2.5 formation, as discussed previously. Where the effect of a pollutant's emissions on ambient PM 2.5 concentrations is subject to this degree of uncertainty, we do not have justification to establish a nationally-applicable presumption that the pollutant is a regulated NSR pollutant subject to the requirements of NSR for PM 2.5 . Under the circumstances, we believe the best policy is to continue to regulate VOC under NSR as a precursor to ozone in all areas, which will potentially provide a co-benefit for PM 2.5 concentrations despite the uncertainty in PM 2.5 formation from VOC. As discussed previously, we do not find it appropriate to utilize the same approach for NO X because the scientific data and modeling analyses provide more certainty that NO X emissions are a significant contributor to ambient PM 2.5 concentrations. Note that we intend to regulate high molecular weight VOC (with 25 carbon atoms or more and low vapor pressure) as direct PM 2.5 emissions because they are emitted directly as primary organic particles and exist primarily in the condensed phase at ambient temperatures. *See* section V.E following for more on the regulation of such “condensables.” Most commenters agreed with the “presumed-out” approach for VOC. One commenter said that the role of VOC in the formation of PM 2.5 is sufficiently understood to recommend a “waiver” approach for this pollutant in the same way as NO X is treated for PM 2.5 in the rule. As discussed previously, the reactions forming secondary organics are complex and the number of intermediate and final compounds formed is voluminous. Some of the best efforts to unravel the chemical composition of ambient organic aerosol matter have merely been able to quantify the concentrations of hundreds of organic compounds representing only 10 to 20 percent of the total organic aerosol mass. For this reason, SOA continues to be a significant topic of research and investigation. Accordingly, we do not agree with the commenter who suggested a waiver or “presumed-in” approach for VOC. We continue to believe that our “presumed-out” approach is most appropriate for VOC and have included this approach in the final rules. 6. Final Action on Ammonia Ammonia (NH 3 ) is a gaseous pollutant that is emitted by natural and anthropogenic sources. Emissions inventories for ammonia are considered to be among the most uncertain of any species related to PM. Ammonia serves an important role in neutralizing acids in clouds, precipitation, and particles. In particular, ammonia neutralizes sulfuric acid and nitric acid, the two key contributors to acid deposition (acid rain). Deposited ammonia also can contribute to problems of eutrophication in water bodies, and deposition of ammonium particles may effectively result in acidification of soil as ammonia is taken up by plants. The NARSTO Fine Particle Assessment 8 indicates that reducing ammonia emissions where sulfate concentrations are high may reduce PM 2.5 mass concentrations, but may also increase the acidity of particles and precipitation. An increase in particle acidity is suspected to be linked with adverse human health effects and with an increase in the formation of secondary organic compounds. Based on this information and further insights gained from the NARSTO Fine Particle Assessment, it is apparent that the formation of particles related to ammonia emissions is a complex, nonlinear process. 8 NARSTO

(2004)“Particulate Matter Assessment for Policy Makers: A NARSTO Assessment.” P. McMurry, M. Shepherd, and J. Vickery, eds. Cambridge University Press, Cambridge, England. ISBN 0 52 184287 5. *See* the docket for this rulemaking, Docket ID No. EPA-HQ-OAR-2003-0062, or *http://www.narsto.org/section.src?SID=6* . Though recent studies have improved our understanding of the role of ammonia in aerosol formation, ongoing research is required to better describe the relationships between ammonia emissions, PM concentrations, and related impacts. The control techniques for ammonia and the analytical tools to quantify the impacts of reducing ammonia emissions on atmospheric aerosol formation are both evolving. Also, area-specific data are needed to evaluate the effectiveness of reducing ammonia emissions on reducing PM 2.5 concentrations in different areas, and to determine where ammonia decreases may increase the acidity of particles and precipitation. Due to the considerable uncertainty related to ammonia as a precursor, our final rules do not require ammonia to be regulated as a PM 2.5 precursor but do give States the option to regulate ammonia as a precursor to PM 2.5 in nonattainment areas for purposes of NSR on a case-by-case basis. Consistent with our proposal, if a State demonstrates to the Administrator's satisfaction that ammonia emissions in a specific nonattainment area are a significant contributor to that area's ambient PM 2.5 concentrations, the State would regulate ammonia as a PM 2.5 precursor under the NSR program in that nonattainment area. Once this demonstration is made, ammonia would be a “regulated NSR pollutant” under NA NSR for that particular nonattainment area, and the State would need to regulate construction and modification of stationary sources that increase emissions of ammonia in that area to assure that these emissions do not interfere with reasonable further progress or the ability of that area to attain or maintain the PM 2.5 NAAQS. In all other nonattainment areas in that State and nationally, ammonia would not be subject to the NSR program. In addition, the action of any State identifying ammonia emissions as a significant contributor to a nonattainment area's PM 2.5 concentrations, or our approval of a nonattainment SIP doing so, does not make ammonia a regulated NSR pollutant for the purposes of PSD in any attainment or unclassifiable areas nationally. This is consistent with our proposal (70 FR 66036) and no commenters took issue with the proposal. We also retain the ability to make a technical demonstration for any area in a State, if appropriate, to reverse the presumption and require ammonia to be addressed in that State's nonattainment area plan. We elected to finalize the proposed approach because of continued uncertainties regarding ammonia emission inventories and the effects of ammonia emission reductions. Ammonia emission inventories are presently very uncertain in most areas, complicating the task of assessing potential impacts of ammonia emissions reductions. In addition, data necessary to understand the atmospheric composition and balance of ammonia and nitric acid in an area are not widely available, making it difficult to predict the results of potential ammonia emission reductions. Ammonia reductions may be effective and appropriate for reducing PM 2.5 concentrations in selected locations, but in other locations such reductions may lead to minimal reductions in PM 2.5 concentrations and increased atmospheric acidity. Research projects continue to expand our collective understanding of these issues, but at this time we believe this case-by-case approach for nonattainment areas is appropriate given that there is sufficient uncertainty regarding the impact of ammonia emission reductions on PM 2.5 concentrations in all nonattainment areas. In light of these uncertainties, we encourage States to continue efforts to better understand the role of ammonia in their fine particle problem areas. Several commenters agreed with our “presumed-out” approach for ammonia. One of these commenters recommended that we recognize the role ammonia plays in PM 2.5 formation and develop a policy to require the minimization and mitigation of known emissions of ammonia, while another suggested that we require States to initiate comprehensive ambient air monitoring networks to determine the extent of local effects of ammonia. Four commenters did not support treating ammonia as a PM 2.5 precursor under any circumstances. Three of these commenters stated that if EPA permits States to demonstrate that ammonia should be regulated as a PM 2.5 precursor for NSR purposes, we should make clear that ammonia emissions from the operation of an air pollution control system to control NO X should not factor into such a demonstration. Two commenters preferred that we use the “presumed-in” approach for ammonia, as for NO X . One of these commenters stated that the “presumed-out” approach would improperly delegate our authority to regulate ammonia as a PM 2.5 precursor to the States and would reverse Congress' requirement to regulate PM precursors unless the emissions are not part of the problem, instead taking the approach that we will “not regulate unless proven to be part of the problem.” We continue to believe that the “presumed-out” approach is most appropriate for ammonia. As discussed previously, considerable uncertainties remain regarding ammonia emission inventories and the effects of ammonia emission reductions. As a result, we do not believe it advisable to adopt a “presumed-in” approach. However, where a State can gather sufficient data to demonstrate that reductions in ammonia emissions will decrease ambient concentrations of PM 2.5 in a particular nonattainment area, we believe that the State should be allowed to regulate ammonia emissions under its PM 2.5 NSR program for that area. We do not believe that this approach improperly delegates authority to the States. The final rule establishes a general presumption for all nonattainment areas through this rulemaking process, and allows for the presumption to be modified by the State on a case-by-case basis with EPA approval. Under the Clean Air Fine Particle Implementation Rule (72 FR 20586, April 5, 2007) (addressing various nonattainment plan elements other than NSR), we still retain the ability to make a technical demonstration for any area if appropriate to reverse the presumption and require ammonia to be addressed in its nonattainment area plan. As discussed previously in section V.A.1, we interpret the Act to allow the “presumed-out” approach adopted in the final rule. We agree with the commenter who suggested that we continue research on the role of ammonia in the formation of PM 2.5 . We believe that it is prudent to continue research on ammonia control technologies and the ammonia-sulfate-nitrate-SOA equilibrium before undertaking a broad national program to reduce ammonia emissions. As we develop a greater understanding about the potential air quality effects of reducing ammonia emissions in specific nonattainment areas, it may be appropriate for ammonia reduction strategies to be included in future SIPs. At this time, however, we believe that reducing SO 2 and NO X emissions will achieve significant reductions in ambient PM 2.5 concentrations. Regarding the comment related to ammonia emissions from NO X control systems, we believe that a State should evaluate all sources of ammonia emissions when determining whether to regulate ammonia under its PM 2.5 NSR program for a particular nonattainment area. However, we also encourage States to be mindful of the potential tradeoff in terms of ambient PM 2.5 concentrations that may be related to reducing ammonia emissions from NO X control systems. B. Major Stationary Source Threshold for PM 2.5 The major NSR program applies to construction of major stationary sources and major modifications at major stationary sources. A stationary source is a “major source” if its actual emissions or its potential to emit for a specific pollutant equals or exceeds the major source threshold for that pollutant established in the Act. Different pollutants, including precursors, are not summed to determine applicability. Sections 169 and 302(j) of the Act contain definitions of “major emitting facility” and “major stationary source” that apply to programs implemented under part C and subpart 1 of part D of the Act (PSD and NA NSR, respectively). Consistent with our proposal, these final rules follow these definitions for purposes of defining a major emitting facility or major stationary source that would be subject to major NSR. The thresholds set out in the definitions are applied to each relevant pollutant individually, that is, to direct PM 2.5 emissions and to emissions of each pollutant identified as a PM 2.5 precursor for the applicable NSR program. Under the final rules, the major source thresholds are as follows: PSD 100 tpy for source categories listed in 40 CFR 51.166(b)(1)(i)(a) and 52.21(b)(1)(i)(a). 250 tpy for all other source categories. NA NSR 100 tpy for all source categories. No regulatory change is required to implement this approach to the major source thresholds for direct PM 2.5 emissions and the PM 2.5 precursors. *See* 40 CFR 51.165(a)(1)(iv)(a), 51.166(b)(1)(i), 52.21(b)(1)(i), and part 51, appendix S, section II.A.4. This approach is consistent with how we treat other criteria pollutants that are covered by subpart 1 of part D of the Act. Nonattainment NSR programs under subpart 1 do not include a tiered classification system such as the one required for ozone nonattainment areas under subpart 2 of part D. We do not interpret subpart 4 of part D of the Act (creating “serious” and “moderate” classifications for PM 10 nonattainment areas) as applying to PM 2.5 . Although our approach is consistent with sections 169 and 302(j) and subpart 1 of part D of the Act, it results in a higher major source threshold in PM 2.5 nonattainment areas than the major source threshold that applies in some PM 10 nonattainment areas under subpart 4 of part D of the Act. This is because section 189(b) of the Act establishes a 70-tpy major source threshold for “serious” PM 10 nonattainment areas while “moderate” PM 10 nonattainment areas apply a 100-tpy major source threshold based on the definition in section 302(j). We do not believe the Act gives us the discretion to promulgate a lower major source threshold for pollutants such as PM 2.5 that are only subject to subpart 1 of part D of the Act. Our emissions inventory data do not indicate that this situation will adversely impact attainment of the PM 2.5 NAAQS. These data indicate that a significant number of sources have actual PM 2.5 emissions in the 100 to 250 tpy range. Additionally, our more current inventory data show that the number of sources that would be covered as major sources by a lower major source threshold would not increase substantially unless the threshold were lowered to 20 tpy or below. Thus, even if EPA had the discretion to adopt a 70-tpy major source threshold for PM 2.5 nonattainment areas, our data indicate that few additional sources would be subject to the major NSR program in PM 2.5 nonattainment areas. 9 9 *See* “NEI-PM 2.5 Source Analysis” in the docket for this rulemaking, Docket ID No. EPA-HQ-OAR-2003-0062. We believe that States should consider such information in developing their own SIP-approved NSR programs. For example, if construction of PM 2.5 sources emitting 99 tpy with no major NSR controls and without mitigation would undermine a State's ability to achieve reasonable further progress or attain the PM 2.5 NAAQS, the State should consider imposing emissions controls or other requirements on these sources through the State's minor NSR program. Note that such programs are required under the existing statute and regulations to assure that the NAAQS are achieved. *See* section 110(a)(2)(C) of the Act and 40 CFR 51.160. In addition, States may address such sources through other elements in their nonattainment area SIPs that are not statutorily bound to the definition of major source, as the major NSR program is. We reiterate that since we do not interpret subpart 4 of the Act to apply to PM 2.5 , we do not believe that we have discretion under section 302(j) of the Act to define a lower major source threshold for pollutants such as PM 2.5 that are only subject to subpart 1 of part D of the Act. Some commenters indicated that State minor NSR programs would not be sufficient to address such sources due to interstate transport and the existence of interstate PM 2.5 nonattainment areas. These commenters indicated that a lower major source threshold for PM 2.5 sources located in designated nonattainment areas should be applied uniformly throughout the entire nonattainment area, which would not be possible when minor NSR programs are defined on a State-by-State basis. We believe, to the contrary, that States can coordinate their minor NSR programs to address interstate PM 2.5 nonattainment areas, and we encourage them to do so. In addition, we note that the impacts of direct PM 2.5 emissions are generally felt primarily in the local area. One commenter stated that in order to address the impact of high PM concentrations, the Act mandates EPA to define a criteria pollutant's NSR major threshold at levels less than 100 tpy. The commenter gave the example of subparts 2 and 4 of part D of the Act, which define lower major source thresholds for certain classifications of ozone and PM 10 nonattainment areas, respectively. The commenter argued that it is unreasonable for us to assert that subpart 4 does not apply to this rule because it regulates all PM with a diameter of less than 10 micrometers, which includes PM 2.5 . The commenter believes that we recognized as much in our proposal preamble discussion of the options for implementing reasonably available control technology (RACT), where we discussed potential approaches that “would be consistent with the approach set forth in the Act in subpart 4.” 70 FR 66017. This commenter stated that a reasonable interpretation of the Act requires major sources of direct PM 2.5 emissions and precursor emissions to be defined at a baseline level of 70 tpy, and adjusted further downward as appropriate considering the characteristics and potential impacts of the pollutants. We do not agree that subpart 4 of part D applies to PM 2.5 nonattainment areas. Subpart 4 was added to the Act by Congress specifically to address the PM 10 NAAQS. We believe that the PM 2.5 standard should be implemented under subpart 1 of part D, which is the general provision of the Act related to NAAQS implementation. Part D of title I of the Act sets forth the requirements for SIPs needed to attain the NAAQS. Part D also includes a general provision under subpart 1, which applies to all NAAQS for which a specific subpart does not exist. Because the PM 2.5 standards were not established until 1997, the nonattainment plan provisions found in section 172 of subpart 1 apply. Subpart 4 on its face applies only to the PM 10 standard. In general, the emphasis in subpart 4 on reducing PM 10 concentrations from certain sources of direct PM 2.5 emissions can be somewhat effective in certain PM 2.5 nonattainment areas but not in all. Contributions to PM 2.5 concentrations are typically from a complex mix of sources of primary emissions and sources of precursor emissions, which form particles through reactions in the atmosphere. In addition, PM 2.5 differs from PM 10 in terms of atmospheric dispersion characteristics, chemical composition, and contribution from regional transport. A group of environmental commenters believed that EPA should be consistent with the stationary source size thresholds proposed for RACT in option 2, *see* 70 FR 66019/1. In our proposal preamble discussion of RACT, while we discussed developing a classification system for PM 2.5 nonattainment areas under section 172(a)(1) of subpart 1, we did not discuss subjecting PM 2.5 to the requirements of subpart 4. While our discussion of RACT contemplated a lower threshold for RACT applicability in some PM 2.5 nonattainment areas, we did not characterize this as defining a lower major source threshold. Moreover, section 302(j) defines a major stationary source as one that emits 100 tpy or more “except as otherwise expressly provided.” Since section 172 does not expressly provide EPA with the authority to promulgate a major source threshold below 100 tpy, we do not believe we are authorized to do so under subpart 1 of part D of the Act. One commenter stated that the major source threshold for PM 2.5 emissions should be calculated using the current SO 2 and NO X definitions of major source and significant emissions rate. Specifically, the commenter suggested that the ratio of these values (100 tpy and 40 tpy, respectively) should be multiplied by the significant emissions rate for direct PM 2.5 emissions (10 tpy; *see* section V.C following) to yield a PM 2.5 major source threshold of 25 tpy. As previously stated, we do not believe that we have discretion under the Act to define a lower major source threshold under subpart 1 of part D of the Act. In any case, the major source thresholds and significant emissions rates for SO 2 and NO X were not defined in relation to one another, and therefore their relationship would not provide a suitable basis for developing the PM 2.5 major source threshold from the PM 2.5 significant emissions rate. Major source thresholds are defined directly in the Act, while the significant emissions rates were codified independently in regulations through a modeling analysis of ambient impacts. C. Significant Emissions Rate for Direct Emissions of PM 2.5 The determination of what should be classified as a modification subject to major NSR is based, in part, on a “significant emissions rate.” 10 The major NSR regulations define this term as a rate above which a net emissions increase will trigger major NSR permitting requirements, if the increase results from a major modification. Sources are exempt from major NSR requirements if the emissions increase resulting from a modification is below this rate because EPA considers such lower emissions increases to be *de minimis* for purposes of the major NSR program. 10 For additional background on EPA's interpretation of modification and rationale for including significant emissions rates in defining major modifications, *see* 61 FR 38253-54 (Dec. 31, 2002). The significant emissions rates for the criteria pollutants other than PM 2.5 are given in the following table: Criteria pollutant Significant emissions rate

(tpy)Ozone VOC: Any increase up to 40 tpy (dependent on NA classification). NO X : Any increase up to 40 tpy (dependent on NA classification). NO 2 NO X : 40 tpy. Particulate Matter 25 tpy, particulate matter emissions. 15 tpy, PM 10 emissions. CO 50 or 100 tpy (dependent on NA classification). SO 2 40 tpy. Lead 0.6 tpy. Significant emissions rates for additional (non-criteria) pollutants that are subject to the PSD program are contained in 40 CFR 51.166(b)(23) and 40 CFR 52.21(b)(23). For direct emissions of PM 2.5 , these final rules define the significant emissions rate as 10 tpy. This is the level that we proposed as our preferred option. This final significant emissions rate for direct PM 2.5 emissions is based fundamentally on the same approach that we used in setting the previous significant emissions rates for PM emissions and PM 10 emissions. Historically, the original significant emissions rate for PM (25 tpy of PM emissions) was set using a modeling analysis to determine the amount of PM emissions that a source could emit that would be unlikely to cause ambient impacts above 4 percent of the PM NAAQS (measured as total suspended particulate (TSP)). 11 Although a range of source configurations can yield a wide range of impacts per tpy of emissions, our review of typical configurations of major PM sources led us to the conclusion that a major modification that increased PM emissions by 25 tpy or less would be unlikely to increase 24-hour average concentrations of TSP by more than 4 percent of the 24-hour TSP NAAQS. Subsequently, when we set the significant emissions rate for PM 10 , we adjusted the rate for PM emissions using the ratio of the 24-hour PM 10 NAAQS to the 24-hour TSP NAAQS to derive the PM 10 significant emissions rate of 15 tpy. We used the ratio of 24-hour NAAQS for this adjustment because that NAAQS was controlling for both PM and PM 10 . 11 The EPA established the original NAAQS for PM in terms of ambient concentrations of TSP (40 CFR 51.100(ss)). Source applicability for PM was determined in terms of amounts of PM emissions (40 CFR 51.100(pp)) from the affected source. In 1993, at 58 FR 31622 ( *see* page 31629), EPA eliminated TSP as the ambient indicator for measuring compliance with both the NAAQS and PSD increments. Thus, EPA no longer considers the TSP ambient indicator to be a regulated NSR pollutant. The EPA is currently evaluating whether it remains appropriate to consider PM as a “regulated NSR pollutant.” There is no NAAQS for TSP/PM, rather the standards address specific size fractions of PM, namely PM 10 and PM 2.5 . However, PM emissions, based on in-stack measurements, continue to be regulated under PSD because of the use of such emissions for evaluating compliance under a variety of CAA section 111 new source performance standards (40 CFR part 60). Given the regulatory changes and positions taken by EPA since 1993, EPA is re-evaluating the implications for PM emissions in the NSPS program (and other air programs) and will act accordingly to clarify this issue in the near-term. We used a conceptually similar methodology to derive the final PM 2.5 significant emissions rate from the rate for PM 10 . However, because the 24-hour NAAQS is not controlling for PM 2.5 , we revised the methodology to take into account the annual impact of emissions. *See* the proposal preamble for additional information on the methodology we used to develop the final significant emissions rate for direct PM 2.5 emissions (70 FR 66038). Several commenters supported our approach to setting the significant emissions rate for direct PM 2.5 emissions and the level (10 tpy) based on the same methodology used for PM emissions and PM 10 emissions. Numerous other commenters believe that our methodology was too conservative, and suggested a significant emissions rate of 15 tpy. Two commenters suggested that we use significant emissions rate of 5 tpy or less. Another commenter suggested that we could “split the difference,” using an option that could give States and companies some flexibility: Modifications less than 5 tpy of direct PM 2.5 emissions could be considered *de minimis* ; modifications between 5 and 15 tpy of direct PM 2.5 emissions could choose to either demonstrate less than a 4 percent NAAQS increase or simply be subject; and modifications with increases of 15 or more tpy of direct PM 2.5 emissions would be subject. We agree with commenters who indicated that we were correct in using the same methodology for direct PM 2.5 that was used to set the significant emissions rate for PM 10 and PM emissions. We do not agree that using the same level as PM 10 emissions (15 tpy) is warranted, given the demonstrated health effects of PM 2.5 . Neither do we agree that a significant emissions rate of 5 tpy or less is warranted. While our screening model runs indicated that emissions increases in this range at facilities with short stacks can cause measurable increases in ambient PM 2.5 levels, we do not believe that facilities at the extremes should dictate the program for all sources. We do not agree that inclusion of condensable emissions in future testing and applicability determinations ( *see* section V.E) is grounds for increasing the SER for direct PM 2.5 emissions. The results of the modeling analysis that is the basis for the SER of 10 tpy is not affected by the nature of the direct PM 2.5 emissions ( *i.e.* , condensable or not). We also do not agree that the proportions of primary and secondary PM 2.5 that comprise ambient PM 2.5 concentrations is relevant to determining the appropriate SER for direct PM 2.5 emissions. Following our historic approach for PM and PM 10 , we based our analysis on determining the size of a source of direct PM 2.5 emissions that would be expected to have an ambient impact of 4 percent or more of the NAAQS. This relationship holds true regardless of the origin of the particles that make up the ambient PM 2.5 . The commenter's approach ( *i.e.* , carrying out the analysis based on one-half of the NAAQS because primary PM 2.5 makes up only one-half of the ambient PM 2.5 ) implies that an increase in ambient PM 2.5 concentrations due to an increase in direct PM 2.5 emissions is somehow automatically matched by a like increase in the ambient concentration of secondary PM 2.5 . We do not believe that this is a reasonable approach. D. Significant Emissions Rates for PM 2.5 Precursors Consistent with the preferred option in the proposal, we are setting significant emissions rates for PM 2.5 precursors at the levels for those pollutants already included in major NSR programs, as shown in the following table: PM 2.5 precursor Significant emissions rate (equal to or exceeding) SO 2 40 tpy. NO X 40 tpy. VOC 40 tpy. Ammonia Adopted in SIP. VOC is presumed not to be a precursor to PM 2.5 in any attainment or unclassifiable area, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOC from sources in a specific area are a significant contributor to that area's ambient PM 2.5 concentrations. Any State making such a demonstration would be required to adopt the 40-tpy significant emissions rate unless it demonstrates that a more stringent significant emissions rate (lower rate) is more appropriate. For ammonia, States determining in their SIPs that control of ammonia is a necessary part of a PM 2.5 control strategy in a particular area must set the significant emissions rate for ammonia. Otherwise, according to the definition of “significant” in the PSD program, “any emissions rate” would be considered significant. *See* 40 CFR 51.166(b)(23)(ii). One commenter stated that we should not leave it to States to set significant emissions rates for ammonia. The commenter argued that EPA's scientists should shoulder this responsibility, and the resulting significant emissions rate should be subject to notice and comment. In the final rule, we are allowing those States that determine in their SIPs that control of ammonia is necessary to set the significant emissions rate for ammonia, based on the information developed for each attainment demonstration. At this time, we believe this is more appropriate than EPA setting a single, nationwide significant emissions rate because of the different role ammonia plays in the formation of PM 2.5 from one area to another, as well as our still-evolving understanding of the impact of reducing ammonia emissions on ambient PM 2.5 concentrations. In addition, we note that the SIP revisions that States undertake to add ammonia to their NA NSR programs are subject to notice and comment rulemaking procedures. Numerous commenters supported our proposal to set significant emissions rates for PM 2.5 precursors at the levels already used for other purposes in the NSR program. One commenter indicated that since roughly half or more of ambient PM 2.5 is derived from precursors, 10 tpy would be an appropriate significant emissions rate for PM 2.5 precursor emissions. Another commenter suggested a significant emissions rate of 4 tpy for SO 2 and 2 tpy for NO X , based on the percentage of PM 2.5 that is typically derived from these precursors and the ratios between the existing significant emissions rates for these pollutants and the SO 2 and NO 2 annual NAAQS. Since the ambient concentrations of PM 2.5 vary across the country and since significant emissions rates have not been developed as a ratio of the NAAQS, we do not believe that the suggested approach is appropriate. As discussed in the proposal, the use of existing significant emission rates where the PM 2.5 precursor is also regulated under NSR as a separate criteria pollutant harmonizes the NSR program for PM 2.5 with the NSR programs for those other criteria pollutants. This enables a source to determine the NSR impacts of proposed modifications by reference to a single significant emissions rate for each pollutant, and enables streamlining of determinations regarding the applicable control technology and analysis of air quality impacts into a single and comprehensive decision making process for both PM 2.5 and other criteria pollutants that also cover PM 2.5 precursors. This also follows precedent. When ozone became a criteria pollutant, EPA used the NO X significant emissions rate from the NO 2 program. The burden imposed is not the only factor to consider when setting the significant emission rates for precursors—the process for determining the significant emission rates must also take into account the accuracy and certainty with which we can predict the effect of the precursors on PM 2.5 concentrations. It is difficult to determine the ambient air quality effects that result from a single source of emissions of PM 2.5 precursors. There are conservative screening models for predicting impacts of large NO X and SO 2 sources on ambient PM 2.5 concentrations. We conducted a range of modeling analyses to determine the amount of PM 2.5 precursor emissions needed to show an increase in ambient PM 2.5 concentrations. These analyses showed that precursor emissions probably have some localized impacts, but that most impact is farther downwind as precursors have the time to convert to PM 2.5 . In addition, the modeling available at this time does not provide sufficient information to estimate impacts of emissions from individual sources of ammonia and VOC on ambient PM 2.5 concentrations. While we know that precursors contribute to the formation of PM 2.5 in the ambient air, the degree to which these individual precursors contribute to PM 2.5 formation in a given location is complex and variable. There are competing chemical reactions taking place in the atmosphere, and meteorological conditions play a significant role in the size and characteristics of particle formation. For these reasons, we do not believe that we have adequate data on the impacts of precursor emissions from individual sources to override the administrative advantages of setting the significant emissions rates for SO 2 , NO X , and VOC for purposes of the PM 2.5 NSR program at the same levels that are already used for other purposes in the major NSR program. E. Condensable PM Emissions In this final NSR rule, EPA will not require that States address condensable PM in establishing enforceable emissions limits for either PM 10 or PM 2.5 in NSR permits until the completion of a transition period, as described herein. In response to significant comments on the variability of test methods available for measuring condensable emissions, we have adopted this transition period approach to allow us to assess the capabilities of the test methods and possibly revise them to improve performance. The transition period will end January 1, 2011 unless EPA advances this date through the rulemaking process described below. Subsequent to the completion of the test methods assessment, EPA will be conducting a notice and comment rulemaking to codify new or revised test methods. Once these new or revised test methods are in place, States will have the tools necessary to issue NSR permits addressing condensable PM. Thus, as part of the test methods rulemaking, we will take comment on an earlier closing date for the transition period in the NSR program if we are on track to meet our expectation to complete the test methods rule much earlier than January 1, 2011. In the meantime, however, we are establishing January 1, 2011 as the latest possible end date for the NSR transition period because this is also the end of the transition period for SIP purposes as described in the Clean Air Fine Particle Implementation Rule ( *see* section II.L in 72 FR 20586, April 25, 2007). Prevention of Significant Deterioration and NA NSR permits issued after the effective date of this NSR implementation rule but prior to the end of the transition period for the NSR program are not required to account for condensable emissions in PM 2.5 or PM 10 emissions limits. After January 1, 2011 (or any earlier date established in the upcoming rulemaking codifying test methods), EPA will require that NSR permits include limits of condensable emissions, as appropriate. Prior to this date, States are not prohibited from establishing emissions limits in NSR permits that include the condensable fraction of direct PM 2.5 . As noted in the proposal preamble, certain commercial or industrial activities involving high temperature processes ( *e.g.* , fuel combustion, metal processing, and process cooking operations) emit gaseous pollutants into the ambient air, some of which rapidly condense into particle form. The constituents of these condensed particles include, but are not limited to, organic materials, sulfuric acid, and metals and metal compounds. We consider such condensable emissions to be a component of direct PM emissions. Specifically, direct PM emissions consist of both the “filterable fraction” which already exist in particle form at the elevated temperature of the exhaust stream, and the “condensable fraction” which exist in gaseous form under exhaust stream conditions but condenses rapidly in the ambient air. Because condensable PM emissions exist almost entirely in the 2.5 micrometer range and smaller, these emissions are inherently more significant for PM 2.5 than for prior PM standards addressing larger particles. Condensable PM emissions commonly make up a significant component of direct PM 2.5 emissions. Therefore, we believe that it is important that the air quality management of PM promote a comprehensive approach to the control of condensable PM. We proposed on November 1, 2005 to clarify that condensable PM emissions must be included when determining whether a source is subject to the major NSR program. We noted in the proposal that our prior guidance 12 had clarified that PM 10 includes condensable PM and that, where States expect condensable PM emissions to be in higher amounts, States should use methods that appropriately measure condensable PM emissions. In addition, we pointed out that the 2001 consolidated emissions reporting rule

(CERR)requires States to report condensable emissions in each inventory revision ( *see* 67 FR 39602, June 10, 2001) and that Method 202 in appendix M of 40 CFR part 51 quantifies condensable PM. We also noted that States have not applied this existing guidance consistently. 12 Leter from Thompson G. Pace, Acting Chief, Particulate Matter Programs Branch, to Sean Fitzsimmons, Iowa Department of Natural Resources (Mar. 31, 1994) (available at *http://www.epa.gov/Region7/programs/artd/air/nsr.nsrmemos/cpm.pdf* and in the docket for this rulemaking, Docket ID No. EPA-HQ-OAR-2003-0062). We received a number of comments on whether NSR programs should account for condensable PM emissions in light of the current state of knowledge of and uncertainties around the measurement of direct PM 2.5 . Several commenters supported our proposal to require the inclusion of condensable PM emissions in NSR applicability determinations. On the other hand, several other commenters expressed opposition to including condensables at this time and raised concerns about the availability and implementation of test methods and related issues about the uncertainties in existing data for condensable PM 2.5 . As a result of the concerns, these commenters believed EPA would be premature in requiring a comprehensive evaluation of condensable PM 2.5 , especially as it related to developing any new emissions limits for stationary sources. One commenter noted that regulation of condensable PM at this time will impede, rather than facilitate, expeditious attainment of the PM 2.5 standard. Another commenter expressed concern about the potential for retroactive enforcement over applicability decisions made in good faith, and for retroactive application of the new test method to assert violations of an emission limit, where the applicability decision or the emission limit was originally based on flawed testing/estimating methodology. Several commenters raised serious concerns about the availability and implementation of accurate test methods and emissions factors for condensable PM 2.5 . They further stated that regulation of condensable PM 2.5 emissions would be appropriate only after we have developed a workable transitional strategy that ensures existing major sources are not placed in “NSR jeopardy” for physical and operational changes undertaken before new test methods and other requirements for condensable PM 2.5 are established. In recognition of these concerns, both as they apply to the NSR program and the broader air program, we have adopted a transition period during which NSR permits need not address limits of condensable PM 2.5 emissions. During this transition period, EPA will undertake a collaborative testing effort with industry, National Association of Clean Air Agencies (NACAA), and other stakeholders to assess and improve the effectiveness and accuracy of the available or revised test methods. The purpose of the stakeholder testing projects will be to collect new direct filterable and condensable PM 2.5 emissions data using methodologies that provide data more representative of sources' direct PM 2.5 emissions. The EPA, States, and others will use these data to establish or improve emissions factors and to define more representative source emissions limits in permits. The EPA acknowledges the legitimate concerns raised by commenters concerning potential exposure to retroactive enforcement and has established rules to address this issue. The EPA will not revisit applicability determinations made in good faith prior to the end of the transition period, insofar as the quantity of condensable PM emissions are concerned, unless the applicable implementation plan clearly required consideration of condensable PM. Likewise, EPA will interpret PM emissions limitations in existing permits or permits issued during the transition period as not requiring quantification of condensable PM 2.5 for compliance purposes unless such a requirement was clearly specified in the permit conditions or the applicable implementation plan. After the end of the transition period (January 1, 2011 or any earlier date established in the upcoming rulemaking codifying test methods), EPA will require that all NSR applicability determinations for PM 2.5 and PM 10 address condensable emissions as applicable, and the source may not rely on calculations made for previous determinations that did not include an accurate accounting of condensables. Additionally, compliance with these limits must be determined using the promulgated validated test methods that are applicable after that date. Moreover, after that date, we expect that condensable PM emissions will be addressed in all other aspects of the major NSR program, such as impact analyses under PSD and offsets under NA NSR. *See* 72 FR 20586, April 25, 2007 for the discussion of the transition period as it applies to the other elements of the air program in the final Clean Air Fine Particle Implementation Rule. Although EPA is not requiring that State NSR programs address condensable emissions of PM until the end of the transition period, States that have developed the necessary tools are not precluded from acting to measure and control condensable PM emissions in NSR permit actions prior to the end of the transition period, especially if it is required in an applicable SIP. To the extent that a State has the supporting technical information and test methods, the State may assess the capabilities of current control technologies, possible modifications to such technologies, or new technologies as appropriate relative to control of condensable PM 2.5 emissions. As an example, a specific approach for controlling condensable PM could be a change in control device operating temperature to improve emissions reductions. We also note that it is important that implementation of any new or revised emissions limits and test methods that account for condensable emissions should be prospective and clearly differentiated from existing NSR permit requirements. This will avoid confusion over the compliance status relative to existing PM emissions limits that were not developed considering the condensable portion. Notwithstanding the issues and uncertainties related to condensable PM, we encourage States to begin immediately to identify measures for reducing condensable PM emissions in major NSR permit actions, particularly where those emissions are expected to represent a significant portion of total PM emissions from a source. F. Prevention of Significant Deterioration

(PSD)Program Requirements To receive a permit for a new major source or a major modification, sources subject to PSD must: • Install Best Available Control Technology (BACT). • Conduct air quality modeling to ensure that the project's emissions will not cause or contribute to either— —A violation of any NAAQS or maximum allowable pollutant increase (PSD increment); or —An adverse impact on any Class I area “air quality related value” (AQRV). • As required, comply with preconstruction monitoring requirements. This final action regarding each of these elements is discussed in the following sections. 1. How must BACT be implemented for PM 2.5 ? We are not making any change to our current regulations or policy for implementing BACT requirements at a major source that is subject to the requirements of the PSD program. Accordingly, if a new major source will emit, or have the potential to emit, a significant amount of a regulated NSR pollutant in an attainment area for that pollutant, the source must apply BACT for each emissions unit that emits the pollutant. In addition, if a physical or operational change at an existing major source will result in a significant emissions increase and a significant net emissions increase of a regulated NSR pollutant in an attainment area for that pollutant, the source must apply BACT to each proposed emissions unit experiencing a net increase in emissions of that pollutant as a result of the physical or operational change in the unit. Under the PM 2.5 PSD program, these requirements will apply to direct PM 2.5 emissions; SO 2 emissions; NO X emissions, unless a State demonstrates that NO X is not a significant contributor to ambient PM 2.5 concentrations in that area; and to VOC if identified by a State as a precursor in the PM 2.5 attainment area where the source is located. 2. How does EPA plan to address PM 2.5 Increments, Significant Impact Levels (SILs), and Significant Monitoring Concentrations (SMCs)? On November 1, 2005, we proposed a rule to implement the PM 2.5 NAAQS, including proposed revisions to the NSR program (70 FR 65984). In that proposal, we indicated our intent to propose a separate rule for developing PM 2.5 increments, SILs, and SMCs and sought comments on general approaches for developing these values. We proposed PM 2.5 increments, SILs, and SMCs in a rule dated September 21, 2007. 72 FR 54112. We intend to address comments received on these components of the PM 2.5 PSD program when we finalize that proposed rule. 3. What is the ambient air quality analysis requirement for PM 2.5 ? All sources subject to PSD review must perform an ambient air quality impact analysis to show that the emissions from the source will not cause or contribute to a PSD increment or NAAQS violation. *See* section 165(a)(3) of the CAA; 40 CFR 51.166(k) and 52.21(k). We did not propose, and our final rules do not contain, any changes to the regulations on air quality impact analyses for purposes of the PM 2.5 NSR program. Accordingly, sources will be required to perform this analysis for the PM 2.5 NAAQS and, when finalized, PM 2.5 increments. Such analyses must consider how a source, in combination with other sources in the area, will impact air quality at existing PM 2.5 monitor locations, as well as at other locations that are appropriate for comparing predicted PM 2.5 concentrations to the NAAQS based on PM 2.5 monitor siting requirements and recommendations. 4. How must the PSD preconstruction monitoring requirement be implemented for PM 2.5 ? Sources subject to PSD are subject to preconstruction ambient air quality monitoring requirements. *See* sections 165(a)(7) and 165(e) of the Act and 40 CFR 51.166(m) and 52.21(m). The PSD permitting requirements provide that continuous preconstruction ambient air quality monitoring must be conducted for any criteria pollutant emitted in significant amounts. Under 40 CFR 51.166(i)(5) and 52.21(i)(5), the reviewing authority has the discretion to exempt an applicant from this monitoring requirement if: • The maximum modeled concentration for the applicable averaging period caused by the proposed significant emissions increase (or net emissions increase) is less than the prescribed SMC; or • The existing monitored ambient concentrations are less than the prescribed SMC. A source may also use existing data as a surrogate for preconstruction monitoring if the existing monitored data record is determined to be representative of the project's location. We proposed five options for how to address preconstruction monitoring for PM 2.5 . We are adopting a combination of options 1 and 3 from the proposal, primarily because we believe that it reflects existing procedures for other regulated NSR pollutants. The following sections summarize the major comments received on each option and explain why we are not adopting particular options. Option 1—Require Preconstruction Monitoring for All Sources But Exempt on a Case-by-Case Basis Generally, commenters who supported option 1 believed the option gives regulatory agencies enough flexibility to address sources with unique characteristics. One commentator stated that another benefit is that this option would avoid unnecessary installation of new PM 2.5 monitors and redundant preconstruction monitoring. Another commenter, however, believed option 1 to be overly burdensome until EPA develops an SMC. The commenter argued that for example, there are many upcoming PSD projects in their State, which would be located in extremely remote areas where there are no local or regional PM 2.5 emission sources, so there would be no need to collect such data for these areas. Additionally, one group of commenters stated that option 1 appeared to be “streamlining” preconstruction permit requirements, which is not the intention of the Act's PSD provisions, and that EPA does not have the authority to exempt sources from the requirements of section 165(e)(2). We agree with the commenter that recommended combining option 3 (the use of a 24-hr PM 2.5 SMC) with option 1 and are finalizing this approach. We have proposed an SMC for PM 2.5 in the rulemaking on increments, SILs, and SMCs (72 FR 54112, September 21, 2007). Our regulations at 40 CFR 51.166(i)(5) and 52.21(i)(5) have allowed the use of an SMC as screening tool for identifying when an impact is *de minimis* and there is thus little or no value in gathering preconstruction monitoring data The use of *de minimis* levels of this nature (such as significant emission rates and significant impact levels) is supported by court precedent interpreting the NSR provisions of the Act. *Alabama Power Co.* v. *Costle,* 636 F.2d 323, 360 (DC Cir. 1979). (“Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of *de minimis* authority to provide [an] exemption when the burdens of regulation yield a gain of trivial or no value.”) Option 2—Exempt All Sources From Preconstruction Monitoring Under option 2, we proposed to exempt all PM 2.5 sources from preconstruction monitoring through a blanket determination that the existing PM 2.5 monitoring network is sufficient. One commenter who preferred option 5 (described subsequently) was also supportive of option 2. This commenter noted that preconstruction monitoring is expensive and can significantly delay a project. The commenter also pointed out that it is very difficult to locate monitors for both direct PM 2.5 and precursors because precursors may transport over long distances before transforming into PM 2.5 . The commenter indicated that we should not rely on the existing regulations, which are already known to be problematic. One comment letter from a group of environmental advocacy organizations specifically opposed option 2. These commenters noted that spatial gradients can be significant for PM 2.5 , especially for direct PM 2.5 emissions, and that the existing monitoring network is severely limited in its spatial coverage, most especially in attainment areas where PSD preconstruction monitoring requirements apply. The commenters indicated that to make a blanket determination that the existing network suffices for any source, regardless of where it might choose to locate, would be absurd. We decided not to finalize option 2 because we do not believe that the current network will be sufficient for all existing and potential new sources. As stated in the proposal preamble, we believe that the existing PM 2.5 monitoring record has the following limitations: • The PM 2.5 monitoring data record would require spatial interpolation between monitors for the determination of appropriate concentrations at the project's location. • Use of existing monitored data will not increase the PM 2.5 monitoring data record to confirm or contradict conventional perceptions. • The PM 2.5 monitoring data record assumes that local hot spots of high PM 2.5 concentrations do not exist or are already being monitored, which may not be true in all cases. • Automatic acceptance of existing measurements does not follow our current policy that a case-by-case determination needs to be made to determine whether preconstruction ambient monitoring is necessary. • When used with the impact modeling, separate concentrations of direct and precursor-formed PM are needed. Option 3—Use SMC's To Exempt Sources From Preconstruction Monitoring Several commenters supported this option adding that this approach follows existing procedures to justify the exclusion of preconstruction monitoring requirements when source impacts are less than the SMC or when sufficient representative data exists. One group of commenters stated that EPA's proposed options 1 and 3, which would allow case-by-case or *de minimis* exemptions from the monitoring requirements, are ill-conceived as a matter of public policy and contradict the Act's PSD provisions. We agree with the commenters that support adopting option 3 because a combination of options 1 and 3 reflects existing procedures for other regulated NSR pollutants. As discussed previously, a *de minimis* exemption from monitoring requirements is supported by court precedent interpreting the PSD provisions of the Act. We do not consider it sound policy to require gathering additional data when it is unnecessary to demonstrate that a proposed source or modification will not adversely impact air quality. Option 4—Use Existing PM 10 Data We proposed using the available large PM 10 data record combined with the recently acquired PM 2.5 data to provide representative ambient measurements for most sources. One comment letter from an industry group opposed any requirement for preconstruction monitoring, and endorsed option 4 if nationally gathered PM 2.5 data is not available. Three commenters specifically opposed option 4. One comment letter from an environmental advocacy organization stated that option 4 is illegal on its face, to the extent that EPA intends it as a universally available alternative. This comment indicated that some individual sources might be able to demonstrate that PM 10 monitoring could fulfill the statutory requirements and purposes of PM 2.5 monitoring ( *e.g.* , with sufficiently protective assumptions about PM 2.5 /PM 10 proportions), but due to the variability in the relationship between PM 2.5 and PM 10 , EPA cannot categorically allow this substitution. Two other commenters stated that option 4 was not a viable approach due to the convoluted nature of attempting to infer PM 2.5 concentration from PM 10 monitoring data for source-specific applications. We decided not to finalize option 4. As we recognized in the proposal preamble, the differences in characteristics between PM 2.5 and PM 10 and our limited understanding of their relationship are problematic for this application. We do not believe that generalized factors to convert PM 10 concentrations to PM 2.5 concentrations sufficiently reflect important industry-specific and spatially-related characteristics of PM 2.5 . In addition, removing altogether the obligation to provide preconstruction PM 2.5 ambient monitoring data would eliminate industry's contribution to the PM 2.5 data record when source impacts are more than *de minimis* . Option 5—Exempt Sources From Preconstruction Monitoring if No SMC Is Established We noted in the proposed rule that the existing regulations at 40 CFR 51.166(i)(5)(iii) and 52.21(i)(5)(ii) could be interpreted to allow a reviewing authority to exempt an applicant from preconstruction monitoring for any pollutant for which we have not established an SMC. These provisions state that a source may be exempted from preconstruction monitoring “if * * * the pollutant is not listed in” the list of pollutants for which SMC have been set. 13 The original rationale for this exemption is based on the lack of adequate methods for measuring ambient concentrations of pollutants not on the list. *See* 45 FR 52709, 52723-52724. We requested comment on this interpretation and any other legal or policy rationale that could support applying the text of these provisions to exempt sources from preconstruction monitoring if we elected not to define an SMC for PM 2.5 . 13 These sections actually cross-reference the list at 40 CFR 51.166(i)(8)(i) and 52.21(i)(8)(i), however we renumbered those paragraphs to paragraph (i)(5)(i) of those provisions in the December 31, 2002 NSR reform rule and inadvertently overlooked correcting the cross-references in paragraphs (i)(5)(ii) and (i)(5)(iii). *See* 67 FR 80186. As proposed, in this final action we have corrected this misnumbering and others in this section. One commenter stated that option 5 is the most practicable to implement until an SMC can be established and any potential gaps in the monitoring network can be filled. Two commenters question the legality of option 5 under the Act. They added that whatever may have been the case when the existing list of SMCs was adopted, methods now exist for conducting the monitoring required under section 165(e)(2). We decided not to finalize option 5, and have proposed an SMC rule for PM 2.5 . In conclusion, we are finalizing a combination of options 1 and 3 from the proposal, since we believe that it reflects existing procedures for other regulated NSR pollutants. Once we finalize an SMC for PM 2.5 , the reviewing authority will have the discretion to exempt a source from the preconstruction monitoring requirement if the projected PM 2.5 ambient impact of the source is below the PM 2.5 level promulgated in our rules. In addition, additional preconstruction monitoring data may not be necessary based on the availability of existing representative monitoring data in the area, as discussed previously. G. Nonattainment New Source Review (NA NSR) Requirements To receive a permit for a new major source or a major modification, sources subject to NA NSR must: • Install Lowest Achievable Emission Rate

(LAER)control technology; • Offset new emissions with creditable emissions reductions; • Certify that all major sources owned or operated by the applicant in the same State are in compliance; and • Conduct an alternative siting analysis demonstrating that the benefits of the proposed source significantly outweigh the environmental and social costs. We did not propose, nor are we finalizing, any revisions to the first, third, and fourth of these requirements. Thus, these requirements apply for purposes of PM 2.5 and its designated precursors just as they apply for other criteria pollutants and their designated precursors. In the remainder of this section G, we discuss our final actions related to offsets for direct PM 2.5 emissions and emissions of PM 2.5 precursors. 1. What is the required offset ratio for direct PM 2.5 emissions? Under section 173 of the Act, all major sources and major modifications at existing major sources within a nonattainment area must obtain emissions reductions to offset any emissions increases resulting from the project in an amount that is at least equal to the emissions increase, and that is consistent with reasonable further progress towards attainment. We refer to the proportional difference between the amount of the required offsets to the amount of emissions increase as the “offset ratio.” The Act specifies an offset ratio for several situations. In ozone nonattainment areas subject to subpart 2 (of title I, part D of the Act), the ratio is set between 1.1:1 and 1.5:1 depending on the area's level of classification pursuant to subpart 2. For other nonattainment areas, the Act establishes a minimum offset ratio of 1:1 pursuant to subpart 1 of title I, part D of the Act. As proposed, we are finalizing the offset ratio for direct PM 2.5 emissions as at least 1:1 on a mass basis because the PM 2.5 program is being implemented under subpart 1 of the Act. The commenters on this issue generally agreed that our regulations should require an offset ratio of at least 1:1 pursuant to subpart 1. A few commenters indicated that a lower ratio could be acceptable on a source-specific basis if accompanied by a modeling analysis demonstrating a net air quality benefit. One commenter suggested that such a demonstration would be possible when a direct PM 2.5 emissions increase from a tall stack is being offset by ground-level PM 2.5 emission reductions. Applying diesel retrofit technology to bus and truck fleets is an example of how ground-level PM 2.5 emission reductions could be achieved. We do not believe that a lower offset ratio is authorized under subpart 1, which prescribes an offset ratio of at least 1:1, and therefore we have not adopted this approach in our final rules. Some of the commenters disagreed regarding whether an offset ratio of at least 1:1 under subpart 1 represents a ceiling or a floor on the level we can prescribe in our regulations. We interpret section 173 of the Act to allow higher offset ratios where necessary to achieve reasonable further progress. Accordingly, we believe that States may establish higher offset ratios in their State programs if they wish, but we do not believe that it would be appropriate for us to do so for PM 2.5 in national regulations. We do not have cause to believe a higher ratio is necessary for PM 2.5 in each area of the country and prefer to leave this to the discretion of States. We do not believe that the higher offset ratios required for ozone precursors under subpart 2 apply in any way to direct PM 2.5 emissions or PM 2.5 precursors. 2. Which precursors are subject to the offset requirement? Consistent with our proposal, the pollutants that are designated as PM 2.5 precursors in a particular area are subject to the offset requirement in that area. Accordingly, SO 2 is subject to offsets in all PM 2.5 nonattainment areas. As a “presumed-in” precursor, NO X will be subject to offsets unless a State obtains an exemption for its NSR program through a demonstration that NO X emissions in a particular area are not a significant contributor to that area's ambient PM 2.5 concentrations. As “presumed-out” precursors, VOC and ammonia would be subject to offsets only in areas where the State has demonstrated that these emissions are significant contributors to the area's ambient PM 2.5 concentrations. Two commenters on this issue agreed with this approach; one commenter recommended that we not require offsets for any PM 2.5 precursors. We believe that it is appropriate to offset emissions increases of all precursors that have been established to contribute to the PM 2.5 nonattainment problem in a particular area. 3. What is the required offset ratio for PM 2.5 precursors? As discussed previously, the Act requires that a source obtain offsets for emissions increases that occur in a nonattainment area. As with PM 2.5 direct emissions, the minimum offset ratio permitted under subpart 1 of the Act is at least 1:1. Based on these requirements of the Act, we are finalizing our proposal that an offset ratio of at least 1:1 applies where a source seeks to offset an increase in emissions of a PM 2.5 precursor with creditable reductions of the same precursor. This offset ratio applies for all pollutants that have been designated as PM 2.5 precursors in a particular nonattainment area. Most commenters agreed with this approach. A few commenters indicated that an offset ratio of less than 1:1 for precursor emissions of PM 2.5 should be allowed only if there is a net air quality benefit and if the lower ratio is justified by air quality modeling analysis. They noted that for PM 2.5 precursors, chemical reactivity modeling demonstrations should be developed and approved that are, at a minimum, capable of determining the impacts of the precursor emissions on the air quality in the nonattainment area in which the source is located. As noted previously, we do not believe that any offset ratio less than 1:1 is permissible under subpart 1. One commenter stated that consistent with the statutory scheme for ozone laid out in section 182, and given the severity of the health risks associated with PM 2.5 , EPA must require offsets of at least 1.15:1 for PM 2.5 precursors in “moderate” nonattainment areas, and must increase the offset ratio in “serious” nonattainment areas or in areas that request extensions of their attainment deadlines. As mentioned previously, we do not believe that subpart 2 of the Act (which includes section 182) has any relevance to PM 2.5 or its precursors. Subpart 2 is specific to ozone. In addition, we are implementing the PM 2.5 program under subpart 1. Nevertheless, under the Act, we believe that a State may require higher offset ratios if it determines that they are necessary to achieve reasonable further progress. For the reasons discussed previously with respect to direct PM 2.5 , we do not believe that it is appropriate for us to set higher offset ratios for PM 2.5 precursors on a national basis. Two commenters requested that we make clear in the final rule that an increase in precursor emissions need only be offset once, even if the increase triggers nonattainment NSR under, for example, both the ozone and PM 2.5 programs. We agree with these commenters and are clarifying that a precursor emissions increase only needs to be offset once. A permit applicant will not, for example, need to obtain two sets of offsets for NO X emissions if NO X is regulated as a precursor both for ozone and PM 2.5 in the area. The NO X precursor emissions need only be offset once in accordance with the applicable ratio. To the extent a higher ratio applies for ozone under subpart 2, the applicant would have to obtain offsets at the higher ratio. However, when the offset ratios are the same, both requirements can be met with a single set of NO X offsets. 4. Is interpollutant trading allowable to comply with offset requirements? In this final rule, we are allowing limited interpollutant trading for purposes of offsets only (and not netting) under the PM 2.5 NA NSR program. Specifically, the final rules allow interpollutant trading only based on a trading ratio established in the SIP as part of the attainment demonstration approved for a specific nonattainment area, on a statewide basis, or in a regional, multi-state program. This differs from our proposal in that the final rules do not allow interpollutant trading on a case-by-case basis as part of an individual NA NSR permitting process. For the purpose of offsets in the NA NSR program for PM 2.5 , the final rules allow reductions in direct PM 2.5 emissions to offset precursor emissions increases, emissions reductions of one precursor to offset emissions increases of another precursor, and reductions in precursor emissions to offset direct PM 2.5 emissions increases. We have completed a technical assessment to develop preferred interpollutant trading ratios that may be used for the purposes of PM 2.5 offsets, where appropriate. The preferred ratios were generated with a PM 2.5 response surface modeling

(RSM)approach based on the EPA's Community Multi-Scale Air Quality

(CMAQ)model. This RSM approach allows one to distinguish the impact of direct and precursor emissions from particular source groupings on total PM 2.5 concentrations within nine specific urban areas and broadly across U.S. regions. This approach was recently applied by the Agency to inform development of potential PM 2.5 control strategies as part of the Regulatory Impact Assessment

(RIA)for the final PM 2.5 NAAQS. 14 Based on results from the RSM, we determined the distribution of predicted ratios for urban areas and regions across the country and developed the preferred ratios with a goal to be environmentally protective. The technical approach with details on data and modeling inputs are fully described in a technical memo to the docket, “Details on Technical Assessment to Develop Interpollutant Trading Ratios for PM 2.5 Offsets.” 15 Use of the preferred ratios is recommended by EPA but not mandatory, and we do not intend to preclude the opportunity for a local demonstration of trading ratios on a case-by-case basis and public input into that process. 14 A full description of this approach is available in the technical support document at *http://www.epa.gov/scram001/reports/pmnaaqs_tsd_rsm_all_021606.pdf* and in the docket for this rulemaking, Docket ID No. EPA-HQ-OAR-2003-0062. 15 Available in the docket for this rulemaking, Docket ID No. EPA-HQ-OAR-2003-0062. Our work here and in other recent PM 2.5 assessments clearly show that the relative efficacy of emissions reductions varies across pollutants and that a ton of direct PM 2.5 is generally more effective than a ton of precursor emissions in reducing overall PM 2.5 concentrations. For the purposes of reporting information here, we define the “East” to be the 37 States either completely or in part east of 100 degrees west longitude. “West” would include the remaining 11 western-most States in the continental United States. We found the following relationships between pollutants in developing the preferred trading ratios: 1. NO X to SO 2 ; SO 2 to NO X : Our assessment indicated potential disbenefits of reducing NO X ( *i.e.* , reducing NO X tons in urban areas may increase overall PM 2.5 concentrations) in the eastern United States and urban areas in the western United States. Due to the possibility of these disbenefits and the high degree of variability in the observed NO X to SO 2 ratios or SO 2 to NO X ratios across urban areas, we are not defining preferred ratios involving trades between these precursors but will rely upon a local demonstration to determine the appropriate trading ratios. 2. NO X to Primary PM 2.5 ; Primary PM 2.5 to NO X : Based on a local demonstration that NO X reductions are beneficial in reducing PM 2.5 concentrations ( *i.e.* , no disbenefits from NO X reductions as noted previously), our assessment indicates that the preferred trading ratio is 200 to 1 (NO X tons for PM 2.5 tons) or 1 to 200 (PM 2.5 tons for NO X tons) for areas in the eastern United States, and 100 to 1 (NO X tons for PM 2.5 tons) or 1 to 100 (PM 2.5 tons for NO X tons ) for areas in the western United States. 3. SO 2 to Primary PM 2.5 ; Primary PM 2.5 to SO 2 : We have determined a nationwide preferred ratio of 40 to 1 (SO 2 tons for PM 2.5 tons) or 1 to 40 (PM 2.5 tons for SO 2 ) for trades between these pollutants. We recognize there is spatial variability here between urban and regionally located sources of these pollutants that can be addressed through a local demonstration to determine an area-specific relationship, as appropriate. We recommend that States use these hierarchies and trading ratios in their interpollutant trading programs to provide consistency and streamline the trading process. As indicated by our work and findings, it is appropriate to establish acceptable trading ratios for interpollutant trading for PM 2.5 NSR offsets. If States elect to use EPA's recommended trading ratios, they may rely on EPA's technical work and a presumption that such ratios will be approvable by EPA absent a credible showing that EPA's trading ratios are not appropriate for that location. If States choose to develop their own hierarchies/trading ratios, they will have to substantiate by modeling and/or other technical demonstrations of the net air quality benefit for PM 2.5 ambient concentrations, and such a trading program will have to be approved by EPA. We acknowledge that the relationship between pollutants can vary across geographic areas. Thus, local demonstrations, to determine trading ratios, will need to address a number of local factors including, but not limited to, the following: 1. The relative magnitude of emissions of direct PM 2.5 and precursor gases ( *e.g.* , SO 2 and NO X ) within the geographic area of interest. 2. The relative contribution to local PM 2.5 nonattainment of directly emitted PM 2.5 and individual precursors from the various sources or source categories under consideration as part of a potential interpollutant trade. 3. The meteorological conditions and topography of the area, which result in different source-receptor relationships across pollutants within the local area. We have adopted this approach to capture the flexibility advantages of interpollutant trading, while remaining mindful of the limitations of existing air quality models. We believe that the regional-scale models used for area-wide attainment demonstrations have sufficient accuracy to establish an overall equivalence ratio for a nonattainment area. However, we do not believe that available models can accurately determine the effects of interpollutant trades at a single source. In addition, permit-by-permit modeling demonstrations are extremely resource intensive, only to yield limited results. For these reasons, the final rules only allow a State to develop its own interpollutant trading rule for inclusion in its SIP, based on a technical demonstration for a specific nonattainment area. We will not accept case-by-case demonstrations on an individual source permit basis. The flexibility provided by this policy allows sources to select the most cost-effective manner to obtain the offsets necessary to ensure that PM 2.5 air quality improves. This will be particularly beneficial where offsets for one particular pollutant are scarce in a particular area, as is often the case for direct PM 2.5 emissions and SO 2 . We received a large number of comments on this issue representing a wide variety of viewpoints. Several commenters supported flexible interpollutant trading at ratios established either on an area-wide basis or permit by permit. They often pointed out the economic and administrative benefits of flexibility in the program, especially in areas where offsets for some pollutants will be difficult to obtain. One commenter asserted that such flexibility is essential to the ability of enterprises to be able to expand as the PM 2.5 NAAQS is implemented, especially in the program's early years. Another commenter suggested allowing such trading on an equal basis, without the “unnecessary complication” of interpollutant offset ratios. Many commenters argued against allowing interpollutant trading for offsets. These commenters commonly pointed out that direct PM 2.5 emissions typically have a more local impact, while the impact of precursor emissions are farther afield. A number of commenters pointed out the complex atmospheric chemistry of secondary particulate formation and the shortcomings of the air quality models currently available to perform a detailed PM 2.5 formation assessment, specifically that local-scale models are not sufficiently accurate and regional-scale models do not have the resolution to show local impacts adequately. According to two commenters, trading precursors for direct PM 2.5 emissions raises serious environmental justice concerns due to the localized impacts of direct PM 2.5 emissions. These commenters also asserted that the equivalence between precursors would vary spatially and temporally, making it extremely difficult to assess, and that PM 2.5 precursors also differ in their impacts on other air pollution problems, such as direct health and welfare impacts of SO 2 and NO X ; and formation of ozone, acid deposition, and reactive nitrogen deposition. We also received comments opposing allowing interpollutant trading for netting purposes, on the basis that the resulting program would be very staff-intensive apart from the difficulty of demonstrating through modeling the net air quality benefit of a single source trade. We concur with these commenters and are not allowing interpollutant trading for netting purposes at this time. A number of commenters supported some types of trades, but not others. Most frequently, these commenters favored allowing reductions in direct PM 2.5 emissions to offset precursor emissions increases. One commenter suggested a hierarchy as follows: Direct PM 2.5 emissions, SO 2 , NO X , ammonia, and VOC. That is, a pollutant should be allowed as an offset for a pollutant ranked lower, but not the reverse ( *e.g.* , reductions in direct PM 2.5 emissions could be used to offset increases in any of the listed pollutants, SO 2 emissions reductions could offset NO X increases, etc.). As previously noted, this rule allows interpollutant and interprecursor trading of offsets according to a SIP-approved trading program. To be approved, the trading program must either adopt EPA's recommended trading ratios or be backed up by regional-scale modeling that demonstrates a net air quality benefit using appropriate overall offset ratios for such trades for a specified nonattainment area, State, or multi-State region. There is considerable uncertainty about the relationship of precursor and direct PM 2.5 emissions to localized ambient PM 2.5 concentration both spatially and temporally. Given the uncertainty as to localized adverse and beneficial effects, we have opted for program flexibility. We believe this is necessary, in part, because of the shortage of available offsets for some pollutants, particularly direct PM 2.5 emissions and SO 2 , in many areas. H. How will the transition to the PM 2.5 PSD requirements occur? 1. Background On October 23, 1997, after the NAAQS for PM 2.5 was originally promulgated, we issued a guidance document entitled “Interim Implementation for the New Source Review Requirements for PM 2.5 ,” John S. Seitz, EPA. As noted in that guidance, section 165 of the Act suggests that PSD requirements become effective for a new NAAQS upon the effective date of the NAAQS. Section 165(a)(1) of the Act provides that no new or modified major source may be constructed without a PSD permit that meets all of the section 165(a) requirements with respect to the regulated pollutant. Moreover, section 165(a)(3) provides that the emissions from any such source may not cause or contribute to a violation of any NAAQS. Also, section 165(a)(4) requires BACT for each pollutant subject to PSD regulation. The 1997 guidance stated that sources should continue to use implementation of a PM 10 program as a surrogate for meeting PM 2.5 NSR requirements until certain difficulties were resolved, primarily the lack of necessary tools to calculate the emissions of PM 2.5 and related precursors, the lack of adequate modeling techniques to project ambient impacts, and the lack of PM 2.5 monitoring sites. With this final action and technical developments in the interim, these difficulties have largely been resolved. 2. Transition for “Delegated States” The Federal PSD program is contained in 40 CFR 52.21. This section is the Federal implementation plan for areas lacking an approved PSD program. We implement this program in Indian country and some U.S. territories, but for the most part we have delegated implementation of 40 CFR 52.21 to those States without approved PSD programs (typically referred to as “delegated States”). Except as provided in the grandfathering provisions that follow, these final rules go into effect and must be implemented beginning on the effective date of this rule, July 15, 2008 in all areas subject to 40 CFR 52.21, including the delegated States. Consistent with 40 CFR 52.21(i)(1)(x), wherein EPA grandfathered sources or modifications with pending permit applications based on PM from the PM 10 requirements established in 1987, EPA will allow sources or modifications who previously submitted applications in accordance with the PM 10 surrogate policy to remain subject to that policy for purposes of permitting if EPA or its delegate reviewing authority subsequently determines the application was complete as submitted. This is contingent upon the completed permit application being consistent with the requirements pursuant to the EPA memorandum entitled “Interim Implementation of New Source Review Requirements for PM 2.5 ” (Oct. 23, 1997) recommending the use of PM 10 as a surrogate for PM 2.5 . Accordingly, we have added 40 CFR 52.21(i)(1)(xi) to reflect this grandfathering provision. 3. Transition for “SIP-Approved States” The requirements for State PSD programs are contained in 40 CFR 51.166. Most States have developed PSD programs according to these requirements, which we have approved into each State's implementation plan. States with PSD programs approved under 40 CFR 51.166 are called “SIP-approved States.” States with SIP-approved PSD programs that require amendments to incorporate these final NSR rule changes for PM 2.5 will need time to accomplish these SIP amendments. For example, a State may need to amend its existing regulations to add the specific significant emissions rate for PM 2.5 or a designated precursor. In our December 31, 2002 **Federal Register** notice promulgating other changes to the NSR program, we explained that the Act does not specifically address the timeframe by which States must submit SIP revisions when we revise the PSD and NA NSR rules. We nonetheless looked to section 110(a)(1) to guide our decision to require States to adopt and submit plan revisions within 3 years from when we publish changes in the **Federal Register** . We codified this approach in the PSD regulations at 40 CFR 51.166(a)(6)(i) and applied this same timeframe to State NA NSR programs through that final rule action. 64 FR 80241. This rule follows our established approach for determining when States must adopt and submit revised SIPs following changes to the NSR regulations, but does not revise otherwise applicable SIP submittal deadlines. Accordingly, we are requiring States with SIP-approved PSD programs to submit revised PSD programs and revised NA NSR programs for PM 2.5 ( *see* section V.I.) within 3 years from the date of this action. 16 16 In our proposal, we proposed April 5, 2008 as a deadline for States to comply with the revised nonattainment NSR and PSD requirements in this rule. However, in light of the time it has taken to complete this final rule, expecting States to submit required SIP revisions consistent with this final rule by April 5, 2008 is no longer practical or fair. Nevertheless, States are still currently required to implement a PSD program for PM 2.5 , and we still expect States to fulfill the SIP infrastructure requirements of CAA section 110(a)(2), including the PSD program requirements, by April 5, 2008. We believe these PSD program requirements are currently met by implementing the transitional PSD program for PM 2.5 described in this preamble (a.k.a. the PM 10 surrogate policy). In accordance with a Consent Decree in *Environmental Defense and American Lung Ass'n* v. *Johnson* , No. 1:05CV00493 (D.D.C. June 15, 2005), EPA must determine by October 5, 2008 whether each State has submitted the SIP revisions for the PM 2.5 PSD program required under section 110(a)(2) of the Act. This rulemaking does not change the specific guidance we previously provided to States on what they should submit by April 5, 2008 to comply with section 110(a)(2). During this SIP development period, the PM 2.5 NAAQS must still be protected under the PSD program in such States. We are finalizing our proposed option 1 that if a SIP-approved State is unable to implement a PSD program for the PM 2.5 NAAQS based on these final rules, the State may continue to implement a PM 10 program as a surrogate to meet the PSD program requirements for PM 2.5 pursuant to the 1997 guidance mentioned previously. Under option 1 for SIP-approved States, we had proposed two additional requirements. These were to require sources to demonstrate that emissions from construction or operation of the facility will not cause or contribute to a violation of the PM 2.5 NAAQS and to include condensable PM emissions in determining major NSR applicability and control requirements. We are not finalizing either of these additional requirements of our proposed option 1. We have dropped the requirement for demonstrating compliance with the PM 2.5 NAAQS in order to maintain consistency in the application of the existing surrogate policy across the PSD program during the interim period. Since in the final rule we are otherwise allowing SIP-approved States to continue with the existing PM 10 surrogate policy to meet the PSD requirements for PM 2.5 , partially implementing the PM 10 surrogate policy in this manner would be confusing and difficult to administer. Thus, to ensure consistent administration during the transition period, we have elected to maintain our existing PM 10 surrogate policy which only recommends as an interim measure that sources and reviewing authorities conduct the modeling necessary to show that PM 10 emissions will not cause a violation of the PM 10 NAAQS as a surrogate for demonstrating compliance with the PM 2.5 NAAQS. Also as discussed previously in section V.E, we are not requiring condensable emissions to be fully integrated into the PM 2.5 program until the end of the transition period to validate test methods discussed in section V.E of this preamble. In our proposal, we offered two additional options for the SIP development period in States with SIP-approved PSD programs. Under option 2, we would have updated the 1997 guidance to reflect the provisions in these final rules and allowed States to run a PM 2.5 program pursuant to this updated guidance. Alternatively under option 2, we would have amended appendix S and 40 CFR 52.24 so that the PSD requirements of 40 CFR 52.21 would govern the issuance of major NSR permits during the SIP development period. Finally, under option 3, we would have allowed a State to request delegation of just the Federal PM 2.5 PSD program in 40 CFR 52.21 in that State. A State that otherwise had a SIP-approved PSD program could have requested delegation for PM 2.5 by informing us that it did not intend to submit a PSD SIP for PM 2.5 in the immediate future. We received several comments supporting option 1, although some of these commenters requested that we not require condensable emissions to be included until the concerns with test methods were resolved. One of these commenters favored continuing to implement the PM 10 program as a surrogate under the 1997 guidance to provide clarity and certainty to the permitting agency and regulated community. The commenter indicated that PM 2.5 inventories and methods for estimating emission rates are rudimentary and may even be nonexistent in some cases, which would make permitting onerous. A few commenters opposed option 1. One of these commenters indicated that we should not continue outdated policy ( *i.e.* , the 1997 NSR guidance) because it does not address the PM 2.5 problem, cannot be implemented in some States, and does not incorporate precursor emissions. Four commenters expressed support for option 2. Three of these suggested that we issue updated guidance to incorporate these PSD requirements for PM 2.5 , while one preferred that we revise appendix S to point to the requirements of 40 CFR 52.21. We received one comment in favor of option 3 and three opposed. Two commenters supported approaches different from our options. One of these commenters requested that the interim framework should, at a minimum, ensure that any new or modified project that exceeds thresholds use BACT. The commenter also suggested that we require offsets for projects approved before the other protective elements of the full PSD program are in place to ensure that there is no significant deterioration in air quality. Another commenter stated that none of the proposed options were viable for their State. The commenter requested that we allow States to continue their existing PM 10 program as a surrogate for PM 2.5 , without caveat. As noted previously, we are finalizing proposed option 1, without the requirement of demonstrating compliance with the PM 2.5 NAAQS or the requirement to include condensable emissions. We believe that our final rule is reasonable for the following reasons. First, PM 10 will act as an adequate surrogate for PM 2.5 in most respects, because all new major sources and major modifications that would trigger PSD requirements for PM 2.5 would also trigger PM 10 requirements because PM 2.5 is a subset of PM 10 . Second, both of the precursors designated in the final rule—SO 2 and NO X (presumptively)—are already regulated under State NSR programs for other criteria pollutants. Thus, those precursors will be subject to NSR through those other programs. We do not believe that the other options or suggestions offer significant advantages that outweigh the utility and ease of implementation of this approach. States may include grandfathering provisions similar to the ones EPA included in the transition requirements for 40 CFR 52.21. I. How will the transition to the PM 2.5 NA NSR requirements occur? 1. Background The requirements for State NA NSR programs are contained in 40 CFR 51.165. All States with nonattainment areas have developed NA NSR programs according to these requirements, which we have approved into each State's implementation plan. However, as noted previously, it takes time for a State to amend its SIP when it must make changes to its NA NSR program. According to the provisions of 40 CFR 52.24(k), during such an interim period when a State lacks an approved NA NSR program for a particular pollutant, appendix S of 40 CFR part 51 applies for NA NSR permitting. Section 172(c)(5) of the Act requires that States issue major NSR permits for construction and major modifications of major stationary sources in any nonattainment area. Thus, since the PM 2.5 nonattainment designations became effective on April 5, 2005, States are now required to issue major NSR permits that address the section 173 NA NSR requirements for PM 2.5 . On the date that the PM 2.5 nonattainment designations took effect (April 5, 2005), we issued guidance to address implementation of the NA NSR program pending the completion of this action to develop implementation rules for PM 2.5 . *See* memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards to Regional Air Directors, “Implementation of New Source Review Requirements in PM 2.5 Nonattainment Areas” (April 5, 2005). Our current guidance permits States to implement a PM 10 NA NSR program as a surrogate to address the requirements of NA NSR for the PM 2.5 NAAQS. A State's surrogate major NSR program in PM 2.5 nonattainment areas may consist of either the implementation of the State's SIP-approved NA NSR program for PM 10 or implementation of a major NSR program for PM 10 under the authority in 40 CFR part 51, appendix S. 2. Transition With this finalization of the new PM 2.5 NSR implementation requirements under 40 CFR 51.165, States now have the necessary tools to implement a NA NSR program for PM 2.5 . After the effective date of the amended rule (that is, July 15, 2008, States will no longer be permitted to implement a NA NSR program for PM 10 as a surrogate for the PM 2.5 NA NSR requirements. Most States will then need to implement a transitional PM 2.5 NA NSR program under appendix S (as amended in this rulemaking action) until EPA approves changes to a State's SIP-approved NA NSR program to reflect the new requirements under 40 CFR 51.165. At this time, we do not believe it is appropriate to allow grandfathering of pending permits being reviewed under the PM 10 surrogate program in nonattainment areas, mainly because of a State's obligations to expedite attainment and the fact that we had not established a similar precedent for transitioning from PM to PM 10 . The NA NSR provisions in a State's existing SIP-approved NA NSR program would also apply in areas designated as nonattainment for the PM 2.5 NAAQS if the SIP-approved regulations contain a generic requirement to issue part D permits in areas designated as nonattainment for any criteria pollutant and do not otherwise need to be amended to incorporate the changes finalized in this action. States belonging to the following categories will need to revise their NA NSR regulations and submit them to EPA for incorporation into the SIP within 3 years from the date of this action 17 : 17 As discussed earlier, we are following the precedent we established in our 2002 rule for NA NSR program revisions to allow States adequate time to adopt these revisions. For practical and fairness reasons, we are not requiring the NA NSR elements of this rule to be submitted by April 5, 2008, as we had proposed. However, the States are still required to submit nonattainment plans for PM 2.5 (including NA NSR programs) on April 5, 2008. We believe this requirement is satisfied by implementing the transitional NA NSR program for PM 2.5 (a.k.a. the PM 10 surrogate policy) described in our April 5, 2005 guidance, or, if submitted after the effective date of this rule, implementing Appendix S as revised in this rule. This rulemaking does not change the specific guidance we previously provided to States on what they should submit to EPA by April 5, 2008 to comply with nonattainment area requirements under Part D. • States that have nonattainment regulations which need to be amended to incorporate the new PM 2.5 requirements. • States that have designated nonattainment areas for PM 2.5 and their nonattainment NSR regulations specifically list the areas in which NA NSR applies ( *i.e.* , the list does not include the designated nonattainment areas for PM 2.5 ). • States that have not previously had nonattainment areas but now have nonattainment areas for PM 2.5 . These States will have to implement a transitional NA NSR permitting program for PM 2.5 pursuant to 40 CFR 52.24(k) and appendix S until their existing part D SIPs are revised to meet these new PM 2.5 NSR requirements under 40 CFR 51.165. 3. Implementation of NSR Under the “Emissions Offset Interpretative Ruling” (40 CFR Part 51, Appendix S) With Revisions In general, appendix S requires new or modified major sources to meet LAER and obtain sufficient offsetting emissions reductions to assure that a new major source or major modification of an existing major source will not interfere with the area's progress toward attainment. Readers should refer to appendix S for a complete understanding of these and other appendix S requirements. In this action, we are finalizing our proposed revisions to appendix S to include provisions necessary to implement a transitional NA NSR program for PM 2.5 , including significant emissions rates applicable to major modifications for PM 2.5 and, as appropriate, precursors. Additionally, since we are finalizing interpollutant trading provisions in the NSR rules at 40 CFR 51.165, we are also amending appendix S to allow interpollutant trading for PM 2.5 . Appendix S applies directly to new and modified major stationary sources. In accordance with the requirements of section 110(a)(2)(c) of the Act, we believe that the majority of States have the legal authority to issue permits consistent with these requirements under an existing SIP-approved permitting program. Nonetheless, at least one State has reported that it lacks the legal authority to issue permits implementing the requirements of appendix S under its existing permitting rules. If a State is unable to apply the requirements of appendix S, we will act as the reviewing authority for the relevant portion of the permit. We believe that it is appropriate for EPA to issue the preconstruction permits in such circumstances. Congress amended the Act in 1990 to remove the requirements that would have applied a construction ban in areas that lacked a SIP-approved part D permit program. Thus, we believe that it is consistent with Congressional intent that either the State or EPA issues construction permits for those projects meeting the applicable criteria during the interim period. *See* the preamble of the proposal for this rule for more detail on the legal basis for requiring States to issue NA NSR permits pursuant to appendix S during the SIP development period (70 FR 66045-46). We received three comments supporting the issuance of NA NSR permits under appendix S during the SIP development period. Two of these commenters expected States generally to be able to do so, while one suggested that EPA issue such permits because States will lack the authority to do so without protracted rule revisions. One of these commenters also suggested that we revise appendix S to authorize interprecursor trading during the transition period, believing that the paucity of existing direct PM 2.5 emissions and SO 2 offsets likely will make business expansion in PM 2.5 nonattainment areas from now until at least April 2008 impossible unless this is done. One commenter suggested that we suspend the 2005 PM 2.5 NSR guidance which allows use of PM 10 emissions as a surrogate for PM 2.5 emissions in PM 2.5 nonattainment areas when we adopt the final PM 2.5 implementation rules, while three other commenters requested continued implementation of that guidance during the interim period. As noted previously, this final action will require States to amend their NA NSR programs consistent with the amended rules at 40 CFR 51.165. During the SIP development period, where they have legal authority to do so, States must issue NA NSR permits under appendix S (as revised for purposes of the PM 2.5 program). To address one of the points raised by commenters, we are amending appendix S to allow interpollutant trading for PM 2.5 in this final rule. Where a State determines that it does not have legal authority to issue such permits, we will act as the reviewing authority. As of the effective date of this action, the 2005 PM 2.5 NSR guidance on use of PM 10 emissions as a surrogate for PM 2.5 emissions will remain in effect only for PSD in the SIP-approved States during the SIP development period. In the delegated PSD States and in nonattainment areas, the new PM 2.5 requirements will apply immediately on the effective date of this final action. J. Does major NSR apply to PM 2.5 precursors during the SIP development period? As discussed previously in section V.A, we have taken final action on NSR applicability for PM 2.5 precursors. Specifically, we have designated SO 2 as a national precursor to PM 2.5 in all areas, NO X as a “presumed-in” precursor in all areas, VOC as a “presumed-out” precursor in all areas, and ammonia as a “presumed-out” precursor. Thus, States have the option of excluding NO X as a precursor by demonstrating that NO X emissions are not a significant contributor to ambient PM 2.5 concentrations in a particular area. In addition, States have the option of identifying VOC and/or ammonia as precursor(s) by demonstrating that emissions of VOC and/or ammonia are a significant contributor in an area, and thus should be subject to major NSR. In the proposal, during the SIP development period, we proposed that SO 2 should be treated as a regulated PM 2.5 precursor as of the effective date of this final rule since there is no doubt about its status as such in any area and proposed to defer NSR applicability for NO X until a State SIP submittal so that if a State elected to submit information to rebut the presumption that NO X is a regulated PM 2.5 precursor, the State would have an opportunity to do so in its SIP submittal. We also proposed that VOCs and ammonia would not be treated as PM 2.5 precursors during the interim period because they are presumed not to be precursors until they have been demonstrated to be through a State's SIP submittal. A few commenters supported staying the applicability of NSR to all precursors during the interim period. However, two of these supporters suggested that EPA establish mechanisms for interpollutant trading for offsets during the interim period so that increases in direct PM 2.5 emissions can be offset with SO 2 or NO X emissions reductions. Another supporter noted that their State cannot impose obligations on NSR applicants until those obligations are established in State regulations or statutes. Another indicated that this delay would allow States the time to develop experience and knowledge in establishing local photochemical models and to performance test their accuracy. Two commenters opposed staying NSR applicability for any precursors. They believe that this would make attainment more difficult. One commenter suggested that SO 2 should be designated as a precursor during the interim period, and another suggested the same for SO 2 and NO X . Based on the comments, we have been persuaded that SIP-approved PSD States will not have the authority to regulate PM 2.5 precursors before they have amended their SIPs to incorporate these requirements in attainment areas. Thus, in order to allow time for these States to revise their regulations to incorporate such requirements, this final action does not require regulation of SO 2 or NO X as precursors to PM 2.5 under PSD until the SIP development period ends. In addition, we are allowing SIP-approved PSD States to continue with the existing PM 10 surrogate policy to meet the PSD requirements for PM 2.5 . However, for delegated PSD States, SO 2 and NO X are regulated as precursors from the effective date of this rule. However, these States or EPA have the option of excluding NO X as a precursor by demonstrating that NO X emissions are not a significant contributor to ambient PM 2.5 concentrations in a particular area. For nonattainment areas, the transitional program pursuant to appendix S will apply on the effective date of this action. Under appendix S, SO 2 will be regulated as a precursor in all nonattainment areas for PM 2.5 . However, unlike in the proposal, NO X will not be regulated as a precursor for PM 2.5 because we believe it is appropriate to give States the opportunity to determine whether NO X emissions are a significant contributor to the ambient PM 2.5 problem, and to make the appropriate demonstration in their SIP. Finally, for States determining that VOC and/or ammonia are PM 2.5 precursors under their SIPs, we will approve their definition of “significant emissions rate” for each precursor based on an appropriate demonstration. K. Are there any Tribal concerns? Some Tribal areas may be designated as nonattainment, in part because of pollution that is transported from surrounding State lands. Tribal representatives have advocated for additional flexibility to address nonattainment problems caused by transported pollution, such as a pool of available NSR offset set-asides (which we expect would come from State offset pools or banks), because they have limited ability to generate offsets on their own. Tribal representatives have raised these and other concerns in discussions on implementation of the 8-hour ozone and PM 2.5 standards, and in comments on the 8-hour ozone implementation rule. We requested comment on whether emissions offset set-asides, possibly generated by innovative measures to promote additional emissions reductions, are an appropriate method to help level the playing field for the Tribes and support economic development in Tribal areas. We also requested comment on ways in which States may help provide the Tribes access to offsets from non-Tribal areas. We received no comments on these issues. We recently proposed Tribal NSR rules. *See* 71 FR 48696, August 21, 2006. They include a NA NSR rule, which refers to appendix S for its substantive requirements, and a minor NSR rule. In recognition of the concerns mentioned above, we have proposed and sought comments on options for obtaining offset relief in that proposal. We will address these issues in the context of that rule. L. What are the requirements for minor NSR for PM 2.5 ? Pursuant to section 110(a)(2)(C) of the Act, States must have a minor source permitting program. This applies to new and modified stationary sources that are not considered major for a criteria pollutant or a precursor for a criteria pollutant. Prior to this action, States were required to include the following pollutants in their minor NSR program: • VOC, • SO 2 , • NO X , • CO, • PM 10 , and • Lead (Pb). Based on this action, States must now amend their minor source programs to include direct PM 2.5 emissions and precursor emissions in the same manner as included for purposes of PM 2.5 major NSR. M. Rural Transport Areas In the proposal for the Clean Air Fine Particle Implementation Rule and this NSR implementation rule for PM 2.5 , we considered the option of classifying some nonattainment areas as transport areas that suffer from overwhelming transport, and of developing NA NSR rules specific to such areas. However, the final implementation rule does not include the rural transport classification. Consequently, no NA NSR rules have been developed or finalized in this rule. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order

(EO)12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it is likely to raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget

(OMB)for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act The information collection requirements in this rule have been submitted for approval to the OMB under the *Paperwork Reduction Act* , 44 U.S.C. 3501 *et seq.* The information collection requirements are not enforceable until OMB approves them. The Information Collection Request

(ICR)document prepared by EPA has been assigned OMB Control Number 2060-0003 (EPA ICR No. 1230.21). To achieve the purposes of the major NSR program, certain records and reports are necessary for the State or local agency (or the EPA Administrator in non-delegated States), for example, to:

(1)Confirm the compliance of status of stationary sources, identify any stationary sources not subject to the rules, and identify stationary sources subject to the rules; and

(2)ensure that the stationary source control requirements are being achieved. The information would be used by EPA or State enforcement personnel to

(1)identify stationary sources subject to the rules,

(2)ensure that appropriate control technology is being properly applied, and

(3)ensure that the emission control devices are being properly operated and maintained on a continuous basis. This final NSR rule does not create new information collection requirements, but rather expands the coverage of the existing requirements of the major NSR program. Specifically, the rule changes finalized in this action add PM 2.5 to the list of air pollutants that must be addressed in the major NSR program, and the companion proposal adds certain elements that are necessary for a complete PM 2.5 NSR program. This change is unlikely to increase significantly the number of NSR permits that must be issued, but may add to the analyses that sources and Federal, State, and local reviewing authorities must conduct as part of the construction permit application and review process. We expect the rule changes finalized in this action to increase the burden associated with major NSR permitting for tracking new emissions of PM 2.5 against increments; collecting ambient air quality monitoring data for existing PM 2.5 concentrations; reviewing the effects of PM 2.5 emissions on soils and vegetation, as well as on air quality related values in Class I areas; determining the appropriate best available control technology or lowest achievable emission rate; and/or obtaining offsets. At the same time, there would be a reduction in burden directly associated with the revocation of the annual increment for PM 10 , which is proposed in the proposed rule. Over the 3-year period covered by the ICR, we estimate an average annual burden increase of about 39,000 hours (about 8 percent) and $4.3 million (about 10 percent) for all industry entities that would be affected by this final NSR rule. For the same reasons, we also expect the final rule to increase burden for the State and local authorities reviewing permit applications when fully implemented. In addition, there would be additional burden for State and local agencies to revise their SIPs to incorporate the proposed changes. We estimate the combined increase in burden to average about 16,000 hours and $700,000 annually for all State and local reviewing authorities, which is less than 13 percent. 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. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the **Federal Register** to display the OMB control number for the approved information collection requirements contained in this final rule. C. Regulatory Flexibility Act The Regulatory Flexibility Act

(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 proposed rule on small entities, “small entity” is defined as:

(1)A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201;

(2)a small governmental jurisdiction that is a government or a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this final rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. The requirements of this final rule apply only to new major stationary sources or major modifications of existing major stationary sources. This final rule does not create any new requirements under the major NSR program, but simply expands the program to cover an additional pollutant, referred to as PM 2.5 . There is no reason to expect that the rule will significantly or uniquely affect small businesses, organizations, or governments (few, if any, of which act as reviewing authorities pursuant to this final rule). 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, we 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 aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires us 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 us 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 of why that alternative was not adopted. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, we 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 our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. We have 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 1 year. The final rule does not add any new requirements to the NSR program; it simply expands the program to cover PM 2.5 in addition to the several other pollutants already defined as regulated NSR pollutants. (Technically, the rule also subjects the precursors to PM 2.5 to the NSR program. However, these precursors (SO 2 , NO X , and VOC) are already subject to the existing NSR program.) As discussed previously in section VI.B on the *Paperwork Reduction Act* , the expansion of the NSR program to cover PM 2.5 will only marginally increase the expenditures of State, local, and tribal governments and the private sector on the program. Thus, this action is not subject to the requirements of sections 202 and 205 of the UMRA. The EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. As noted previously, this rule does not create any new requirements under the major NSR program, but simply expands the program to cover an additional pollutant (PM 2.5 ). There is no reason to expect that the rule will significantly or uniquely affect small governments, few if any of which act as reviewing authorities. E. Executive Order 13132—Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires us 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. Pursuant to the terms of Executive Order 13132, it has been determined that this proposed rule does not have “federalism implications” because it does not meet the necessary criteria. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule. In the spirit of Executive Order 13132, however, and consistent with our policy to promote communications between us and State and local governments, we specifically solicited comment on the proposed rule from State and local officials. F. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This final rule does not have “Tribal implications” as defined in Executive Order 13175. This rule concerns the NSR requirements for State and tribal implementation plans. The CAA provides for States to develop plans to regulate emissions of air pollutants within their jurisdictions. The Tribal Air Rule

(TAR)under the CAA gives Tribes the opportunity to develop and implement CAA programs such as programs to attain and maintain the PM 2.5 NAAQS, but it leaves to the discretion of the Tribe the decision of whether to develop these programs and which programs, or appropriate elements of a program, they will adopt. Although Executive Order 13175 does not apply to this rule, EPA did reach out to Tribal leaders and environmental staff in developing this rule. From 2001-2004, the EPA supported a National Designations Workgroup to provide a forum for tribal professionals to give input to the designations process. In 2006, EPA supported a national “Tribal Air call” which provides an open forum for all Tribes to voice concerns to EPA about the NAAQS implementation process, including the PM 2.5 NAAQS. In these meetings, EPA briefed call participants and Tribal environmental professionals gave input as the rule was under development. Furthermore, in December 2005, EPA sent individualized letters to all federally recognized Tribes about the proposal to give Tribal leaders the opportunity for consultation. This final rule does not have Tribal implications as defined by Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAA program to attain the PM 2.5 NAAQS at this time. The EPA notes that even if a Tribe were implementing such a plan at this time, while the rule might have Tribal implications with respect to that Tribe, it would not impose substantial direct costs upon it, nor would it preempt Tribal law. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. As this rule does not have Tribal implications, Executive Order 13175 does not apply. G. Executive Order 13045—Protection of Children From Environmental Health and Safety Risks Executive Order 13045, entitled “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 we have 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 because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This rule does not impose any new requirements under the NSR program. However, in expanding the major NSR program to address PM 2.5 , we believe that this rule will serve to reduce environmental health risks to all citizens, including children, because one of the basic requirements of the major NSR program is that new and modified major stationary sources must not cause or contribute to air quality in violation of the NAAQS. H. Executive Order 13211—Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The final rule does not add any new requirements to the major NSR program; it simply expands the program to cover PM 2.5 in addition to the several other pollutants already defined as regulated NSR pollutants. Although the major NSR program may apply to energy supply and distribution companies that build or significantly modify major sources of regulated NSR pollutants, we believe that any increase in expenditures for obtaining NSR permits that may result from this rule will be marginal rather than significant. 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 No. 104-113, 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards

(VCS)in our regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, and business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs us to provide Congress, through annual reports to OMB, with explanations when we do not use available and applicable VCS. This final rule does not involve technical standards. Therefore, we did not consider the use of any VCS. 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 its programs, policies, and activities on minorities and low-income populations in the United States. The 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 will have the effect of improving air quality. While it does not impose any new requirements under the major NSR program, we believe that this rule, in expanding the NSR program to address PM 2.5 , will serve to reduce adverse human health and environmental effects for all citizens, including minorities and low-income populations. 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. The 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). The rules affected by this action will be effective July 15, 2008. L. Petitions for Judicial Review Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by July 15, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. *See* Act section 307(b)(2). M. Determination Under Section 307(d) The PSD portions of this rulemaking, which implements part C of title I of the Act, are subject to the procedural requirements in section 307(d) of the Act. *See* section 307(d)(1)(J). In addition, pursuant to section 307(d)(1)(V) of the Act, the Administrator determines that the NA NSR portions of this action should also be subject to the provisions of section 307(d) to ensure consistency. All of the procedural requirements of section 307(d), *e.g.* , docketing, hearing, and comment periods, have been complied with during the course of this rulemaking. VII. Statutory Authority The statutory authority for this action is provided by sections 101, 110, 165, 169, 172, 173, 301, and 302 of the Act as amended (42 U.S.C. 7401, 7410, 7475, 7479, 7502, 7503, 7601, and 7602). This rulemaking is also subject to section 307(d) of the Act (42 U.S.C. 7407(d)). List of Subjects 40 CFR Part 51 Environmental protection, Administrative practices and procedures, Air pollution control, Intergovernmental relations. 40 CFR Part 52 Environmental protection, Administrative practices and procedures, Air pollution control, Intergovernmental relations. Dated: May 8, 2008. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows. PART 51—[AMENDED] 1. The authority citation for part 51 continues to read as follows: Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q. Subpart I—[Amended] 2. Section 51.165 is amended as follows: a. By revising paragraph (a)(1)(x)(A); b. By removing the word “or” at the end of paragraph (a)(1)(xxxvii)(B); c. By revising paragraph (a)(1)(xxxvii)(C); d. By adding paragraph (a)(1)(xxxvii)(D); e. By redesignating paragraphs (a)(9)(i) through

(iii)as paragraphs (a)(9)(ii) through (iv), respectively, and adding new paragraph (a)(9)(i); f. By removing from newly redesignated paragraph (a)(9)(iii) the reference to “paragraph (a)(9)(i)” and adding in its place “paragraph (a)(9)(ii)”; and g. By adding paragraph (a)(11). § 51.165 Permit requirements.

(a)* * *

(1)* * * (x)(A) *Significant* means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: Pollutant Emission Rate Carbon monoxide: 100 tons per year

(tpy)Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy Ozone: 40 tpy of volatile organic compounds or nitrogen oxides Lead: 0.6 tpy PM 10 : 15 tpy PM 2.5 : 10 tpy of direct PM 2.5 emissions; 40 tpy of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless demonstrated not to be a PM 2.5 precursor under paragraph (a)(1)(xxxvii) of this section (xxxvii) * * *

(C)Any pollutant that is identified under this paragraph (a)(1)(xxxvii)(C) as a constituent or precursor of a general pollutant listed under paragraph (a)(1)(xxxvii)(A) or

(B)of this section, provided that such constituent or precursor pollutant may only be regulated under NSR as part of regulation of the general pollutant. Precursors identified by the Administrator for purposes of NSR are the following: ( *1* ) Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone nonattainment areas. ( *2* ) Sulfur dioxide is a precursor to PM 2.5 in all PM 2.5 nonattainment areas. ( *3* ) Nitrogen oxides are presumed to be precursors to PM 2.5 in all PM 2.5 nonattainment areas, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient PM 2.5 concentrations. ( *4* ) Volatile organic compounds and ammonia are presumed not to be precursors to PM 2.5 in any PM 2.5 nonattainment area, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of volatile organic compounds or ammonia from sources in a specific area are a significant contributor to that area's ambient PM 2.5 concentrations; or

(D)PM 2.5 emissions and PM 10 emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures. On or after January 1, 2011 (or any earlier date established in the upcoming rulemaking codifying test methods), such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM 2.5 and PM 10 in nonattainment major NSR permits. Compliance with emissions limitations for PM 2.5 and PM 10 issued prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of the permit or the applicable implementation plan. Applicability determinations made prior to this date without accounting for condensable particulate matter shall not be considered in violation of this section unless the applicable implementation plan required condensable particulate matter to be included. (9)(i) The plan shall require that in meeting the emissions offset requirements of paragraph (a)(3) of this section, the ratio of total actual emissions reductions to the emissions increase shall be at least 1:1 unless an alternative ratio is provided for the applicable nonattainment area in paragraphs (a)(9)(ii) through (a)(9)(iv) of this section.

(11)The plan shall require that in meeting the emissions offset requirements of paragraph (a)(3) of this section, the emissions offsets obtained shall be for the same regulated NSR pollutant unless interprecursor offsetting is permitted for a particular pollutant as specified in this paragraph. The plan may allow the offset requirements in paragraph (a)(3) of this section for direct PM 2.5 emissions or emissions of precursors of PM 2.5 to be satisfied by offsetting reductions in direct PM 2.5 emissions or emissions of any PM 2.5 precursor identified under paragraph (a)(1)(xxxvii)(C) of this section if such offsets comply with the interprecursor trading hierarchy and ratio established in the approved plan for a particular nonattainment area. 3. Section 51.166 is amended as follows: a. By revising paragraphs (b)(23)(i) and (b)(49)(i); b. By removing the word “or” at the end of paragraph (b)(49)(iii); c. By adding and reserving paragraph (b)(49)(v); d. By adding paragraph (b)(49)(vi); and e. By revising paragraphs (i)(5)(ii) and (i)(5)(iii). § 51.166 Prevention of significant deterioration of air quality.

(b)* * * (23)(i) *Significant* means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: Pollutant and Emissions Rate Carbon monoxide: 100 tons per year

(tpy)Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy Particulate matter: 25 tpy of particulate matter emissions. 15 tpy of PM 10 emissions PM 2.5 : 10 tpy of direct PM 2.5 emissions; 40 tpy of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless demonstrated not to be a PM 2.5 precursor under paragraph (b)(49) of this section Ozone: 40 tpy of volatile organic compounds or nitrogen oxides Lead: 0.6 tpy Fluorides: 3 tpy Sulfuric acid mist: 7 tpy Hydrogen sulfide (H 2 S): 10 tpy Total reduced sulfur (including H 2 S): 10 tpy Reduced sulfur compounds (including H 2 S): 10 tpy Municipal waste combustor organics (measured as total tetra-through octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 × 10- −6 megagrams per year (3.5 × 10 −6 tons per year) Municipal waste combustor metals (measured as particulate matter): 14 megagrams per year (15 tons per year) Municipal waste combustor acid gases (measured as sulfur dioxide and hydrogen chloride): 36 megagrams per year (40 tons per year) Municipal solid waste landfill emissions (measured as nonmethane organic compounds): 45 megagrams per year (50 tons per year)

(49)* * *

(i)Any pollutant for which a national ambient air quality standard has been promulgated and any pollutant identified under this paragraph (b)(49)(i) as a constituent or precursor to such pollutant. Precursors identified by the Administrator for purposes of NSR are the following: ( *a* ) Volatile organic compounds and nitrogen oxides are precursors to ozone in all attainment and unclassifiable areas. ( *b* ) Sulfur dioxide is a precursor to PM 2.5 in all attainment and unclassifiable areas. ( *c* ) Nitrogen oxides are presumed to be precursors to PM 2.5 in all attainment and unclassifiable areas, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient PM 2.5 concentrations. ( *d* ) Volatile organic compounds are presumed not to be precursors to PM 2.5 in any attainment or unclassifiable area, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of volatile organic compounds from sources in a specific area are a significant contributor to that area's ambient PM 2.5 concentrations.

(v)[Reserved.]

(vi)Particulate matter

(PM)emissions, PM 2.5 emissions, and PM 10 emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures. On or after January 1, 2011 (or any earlier date established in the upcoming rulemaking codifying test methods), such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM, PM 2.5 and PM 10 in PSD permits. Compliance with emissions limitations for PM, PM 2.5 and PM 10 issued prior to this date shall not be based on condensable particular matter unless required by the terms and conditions of the permit or the applicable implementation plan. Applicability determinations made prior to this date without accounting for condensable particular matter shall not be considered in violation of this section unless the applicable implementation plan required condensable particular matter to be included.

(i)* * *

(5)* * *

(ii)The concentrations of the pollutant in the area that the source or modification would affect are less than the concentrations listed in paragraph (i)(5)(i) of this section; or

(iii)The pollutant is not listed in paragraph (i)(5)(i) of this section. 4. Appendix S to Part 51 is amended as follows: a. By revising paragraphs II.A.10(i) and II.A.31; b. By revising paragraph IV.A, Condition 3; c. By redesignating paragraphs IV.G.1 through IV.G.3 as paragraphs IV.G.2 through IV.G.4, respectively, and adding new paragraph IV.G.1; d. By removing from newly redesignated paragraph IV.G.3 the reference to “paragraph IV.G.1” and adding in its place “paragraph IV.G.2”; and e. By adding paragraph IV.G.5. Appendix S to Part 51—Emission Offset Interpretative Ruling II. * * * A. * * * 10.

(i)*Significant* means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: Pollutant and Emissions Rate Carbon monoxide: 100 tons per year

(tpy)Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy Ozone: 40 tpy of volatile organic compounds or nitrogen oxides Lead: 0.6 tpy Particulate matter: 25 tpy of particulate matter emissions PM 10 : 15 tpy PM 2.5 : 10 tpy of direct PM 2.5 emissions; 40 tpy of sulfur dioxide emissions 31. *Regulated NSR pollutant* , for purposes of this Ruling, means the following:

(i)Nitrogen oxides or any volatile organic compounds;

(ii)Any pollutant for which a national ambient air quality standard has been promulgated;

(iii)Any pollutant that is identified under this paragraph II.A.31(iii) as a constituent or precursor of a general pollutant listed under paragraph II.A.31(i) or

(ii)of this Ruling, provided that such constituent or precursor pollutant may only be regulated under NSR as part of regulation of the general pollutant. Precursors identified by the Administrator for purposes of NSR are the following: ( *a* ) Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone nonattainment areas. ( *b* ) Sulfur dioxide is a precursor to PM 2.5 in all PM 2.5 nonattainment areas; or

(iv)Particulate matter

(PM)emissions, PM 2.5 emissions and PM 10 emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures. On or after January 1, 2011 (or any earlier date established in the upcoming rulemaking codifying test methods), such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM, PM 2.5 and PM 10 in permits issued under this ruling. Compliance with emissions limitations for PM, PM 2.5 and PM 10 issued prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of the permit or the applicable implementation plan. Applicability determinations made prior to this date without accounting for condensable particulate matter shall not be considered in violation of this section unless the applicable implementation plan required condensable particulate matter to be included. IV. * * * A. * * * *Condition 3* . Emission reductions ( *offsets* ) from existing sources 5 in the area of the proposed source (whether or not under the same ownership) are required such that there will be reasonable progress toward attainment of the applicable NAAQS. 6 Except as provided in paragraph IV.G.5 of this Ruling (addressing PM 2.5 and its precursors), only intrapollutant emission offsets will be acceptable ( *e.g.* , hydrocarbon increases may not be offset against SO 2 reductions). 5 Subject to the provisions of paragraph IV.C of this Ruling. 6 The discussion in this paragraph is a proposal, but represents EPA's interim policy until final rulemaking is completed. G. *Offset ratios* . 1. In meeting the emissions offset requirements of paragraph IV.A, Condition 3 of this Ruling, the ratio of total actual emissions reductions to the emissions increase shall be at least 1:1 unless an alternative ratio is provided for the applicable nonattainment area in paragraphs IV.G.2 through IV.G.4. 5. *Interpollutant offsetting* . In meeting the emissions offset requirements of paragraph IV.A, Condition 3 of this Ruling, the emissions offsets obtained shall be for the same regulated NSR pollutant unless interpollutant offsetting is permitted for a particular pollutant as specified in this paragraph IV.G.5. The offset requirements of paragraph IV.A, Condition 3 of this Ruling for direct PM 2.5 emissions or emissions of precursors of PM 2.5 may be satisfied by offsetting reductions of direct PM 2.5 emissions or emissions of any PM 2.5 precursor identified under paragraph II.A.31

(iii)of this Ruling if such offsets comply with an interprecursor trading hierarchy and ratio approved by the Administrator. PART 52—[AMENDED] 5. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—[Amended] 6. Section 52.21 is amended as follows: a. By revising paragraphs (b)(23)(i) and (b)(50)(i); b. By removing the word “or” at the end of paragraph (b)(50)(iii); c. By adding and reserving paragraph (b)(50)(v); d. By adding paragraphs (b)(50)(vi) and (i)(1)(xi); e. By revising paragraph (i)(5)(ii); and f. By adding paragraph (i)(5)(iii). § 52.21 Prevention of significant deterioration of air quality.

(b)* * * (23)(i) Significant means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: Pollutant and Emissions Rate Carbon monoxide: 100 tons per year

(tpy)Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy Particulate matter: 25 tpy of particulate matter emissions PM 10 : 15 tpy PM 2.5 : 10 tpy of direct PM 2.5 emissions; 40 tpy of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless demonstrated not to be a PM 2.5 precursor under paragraph (b)(50) of this section Ozone: 40 tpy of volatile organic compounds or nitrogen oxides Lead: 0.6 tpy Fluorides: 3 tpy Sulfuric acid mist: 7 tpy Hydrogen sulfide (H 2 S): 10 tpy Total reduced sulfur (including H 2 S): 10 tpy Reduced sulfur compounds (including H 2 S): 10 tpy Municipal waste combustor organics (measured as total tetra-through octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 × 10 -6 megagrams per year (3.5 × 10 -6 tons per year) Municipal waste combustor metals (measured as particulate matter): 14 megagrams per year (15 tons per year) Municipal waste combustor acid gases (measured as sulfur dioxide and hydrogen chloride): 36 megagrams per year (40 tons per year) Municipal solid waste landfills emissions (measured as nonmethane organic compounds): 45 megagrams per year (50 tons per year)

(50)* * *

(i)Any pollutant for which a national ambient air quality standard has been promulgated and any pollutant identified under this paragraph (b)(50)(i) as a constituent or precursor for such pollutant. Precursors identified by the Administrator for purposes of NSR are the following: ( *a* ) Volatile organic compounds and nitrogen oxides are precursors to ozone in all attainment and unclassifiable areas. ( *b* ) Sulfur dioxide is a precursor to PM 2.5 in all attainment and unclassifiable areas. ( *c* ) Nitrogen oxides are presumed to be precursors to PM 2.5 in all attainment and unclassifiable areas, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient PM 2.5 concentrations. ( *d* ) Volatile organic compounds are presumed not to be precursors to PM 2.5 in any attainment or unclassifiable area, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of volatile organic compounds from sources in a specific area are a significant contributor to that area's ambient PM 2.5 concentrations.

(v)[Reserved.]

(vi)Particulate matter

(i)* * *

(1)* * *

(xi)The source or modification was subject to 40 CFR 52.21, with respect to PM 2.5 , as in effect before July 15, 2008, and the owner or operator submitted an application for a permit under this section before that date consistent with EPA recommendations to use PM 10 as a surrogate for PM 2.5 , and the Administrator subsequently determines that the application as submitted was complete with respect to the PM 2.5 requirements then in effect, as interpreted in the EPA memorandum entitled “Interim Implementation of New Source Review Requirements for PM 2.5 ” (October 23, 1997). Instead, the requirements of paragraphs

(j)through

(r)of this section, as interpreted in the aforementioned memorandum, that were in effect before July 15, 2008 shall apply to such source or modification.

(5)* * *

(ii)The concentrations of the pollutant in the area that the source or modification would affect are less than the concentrations listed in paragraph (i)(5)(i) of this section; or

(iii)The pollutant is not listed in paragraph (i)(5)(i) of this section. [FR Doc. E8-10768 Filed 5-15-08; 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 Randolph County, Illinois, and Incorporated Areas Docket No.: FEMA-B-7740 Kaskaskia River At confluence with Mississippi River +392 Village of Evansville, Unincorporated Areas of Randolph County. Randolph/Monroe County boundary (approximately 700 feet upstream Anna Lane extended) +392 Mississippi River Jackson/Randolph County boundary (approximately Cora Road extended) +382 City of Chester, Unincorporated Areas of Randolph County, Village of Kaskaskia, Village of Prairie Du Rocher, Village of Rockwood. Randolph/Monroe County boundary (approximately 3,025 feet downstream of Regtown Road extended) +402 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Chester Maps are available for inspection at 1330 Swanwick Street, Chester, IL 62233. Unincorporated Areas of Randolph County Maps are available for inspection at 1 Taylor Street, Zoning Administrator, Chester, IL 62233. Village of Evansville Maps are available for inspection at 403 Spring Street, P.O. Box 257, Evansville, IL 62242. Village of Kaskaskia Maps are available for inspection at 1 Taylor Street, Chester, IL 62233. Village of Prairie Du Rocher Maps are available for inspection at 209 Henry Street, P.O. Box 325, Prairie Du Rocher, IL 62277. Village of Rockwood Maps are available for inspection at 900 Original Street, Rockwood, IL 62280. Warren County, Mississippi, and Incorporated Areas Docket No.: FEMA-B-7721 Clear Creek At Tiffintown Road +144 (Warren County, Unincorporated Areas). Approximately 6,490 feet upstream of Tiffintown Road +150 Clear Creek Tributary 1 At Tiffintown Road +144 (Warren County, Unincorporated Areas). Approximately 1,825 feet upstream of Tiffintown Road +145 Crouches Creek Approximately 840 feet downstream of confluence with Crouches Creek Tributary 2 +155 (Warren County, Unincorporated Areas). Approximately 2,730 feet upstream of confluence with Crouches Creek Tributary 2 +164 Crouches Creek Tributary 2 At confluence with Crouches Creek +159 (Warren County, Unincorporated Areas). At Freetown Road +165 Crouches Creek Tributary 3 At confluence with Crouches Creek +159 (Warren County, Unincorporated Areas). Approximately 2,970 feet upstream of confluence with Crouches Creek +166 Glass Bayou At Fort Hill Drive +123 City of Vicksburg. At Evergreen Drive +208 Muddy Creek At Tucker Road +148 (Warren County, Unincorporated Areas). Approximately 4,565 feet upstream of TuckerRoad +150 Muddy Creek Tributary 1 At confluence with Muddy Creek +148 (Warren County, Unincorporated Areas). Approximately 2,970 feet upstream of confluence with Muddy Creek +176 Paces Bayou At U.S. Highway 61 +96 City of Vicksburg (Warren County, Unincorporated Areas). Approximately 3,530 feet upstream of U.S. Highway 61 +108 Paces Bayou Tributary 1 At Redbone Road +121 City of Vicksburg. Approximately 1,390 feet upstream of Redbone Road +123 Paces Bayou Tributary 3 At Redbone Road +115 City of Vicksburg, (Warren County, Unincorporated Areas). Approximately 2,040 feet upstream of Redbone Road +118 Silver Creek Approximately 1,500 feet downstream of confluence with Silver Creek Tributary 2 +162 (Warren County, Unincorporated Areas). Approximately 8,615 feet upstream of confluence with Silver Creek Tributary 3 +259 Silver Creek Tributary 2 Approximately 745 feet upstream of confluence with Silver Creek +181 (Warren County, Unincorporated Areas). Approximately 4,890 feet upstream of confluence with Silver Creek +217 Silver Creek Tributary 3 Approximately 1,070 feet upstream of confluence with Silver Creek +191 (Warren County, Unincorporated Areas). Approximately 4,975 feet upstream of confluence with Silver Creek +228 Stouts Bayou At Interstate 20 +122 City of Vicksburg. At Spring Street +197 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Vicksburg Maps are available for inspection at 1401 Walnut Street, Vicksburg, MS 39180. Warren County (Unincorporated Areas) Maps are available for inspection at 913 Jackson Street, Vicksburg, MS 39183. Cabarrus County, North Carolina and Incorporated Areas Docket Nos.: FEMA-B-7718, FEMA-B-7736, FEMA-D-7820, and FEMA-B-7752 Adams Creek Approximately 150 feet upstream of NC 73 +630 Unincorporated Areas of Cabarrus County. Approximately 1,460 feet upstream of NC 73 Highway E +630 Afton Run Approximately 50 feet upstream of Dogwood Boulevard +665 City of Kannapolis. Approximately 1.5 miles upstream of Dogwood Boulevard +710 Anderson Creek Approximately 50 feet upstream of Bethel Church Road (State Road 1125) +566 Unincorporated Areas of Cabarrus County. Approximately 900 feet upstream of Sam Black Road (State Road 1127) +613 Anderson Creek Tributary 1 At the confluence with Anderson Creek +575 Unincorporated Areas of Cabarrus County. At Sam Black Road (State Road 1127) +611 Caldwell Creek Tributary Approximately 1,125 feet upstream of the confluence with Caldwell Creek +593 Unincorporated Areas of Cabarrus County. Approximately 1,700 feet upstream of Pioneer Mill Road (State Road 1134) +669 Chambers Branch Approximately 110 feet upstream of U.S. Highway 29 +702 City of Kannapolis. Approximately 1,180 feet upstream of East 1st Street +718 Clear Creek At the confluence with Rocky River +469 Unincorporated Areas of Cabarrus County, Town of Midland. Approximately 150 feet upstream of the Cabarrus/Mecklenburg County boundary +536 Coddle Creek Approximately 150 feet downstream of Coddle Creek Dam +620 Unincorporated Areas of Cabarrus County. At the Rowan/Cabarrus/Iredell County boundary +674 Coddle Creek Tributary 1 Approximately 500 feet upstream of the confluence with Coddle Creek +543 Unincorporated Areas of Cabarrus County, City of Concord. Approximately 1,800 feet upstream of Rocky River Road (State Road 1139) +555 Coddle Creek Tributary 2 Approximately 950 feet upstream of the confluence with Coddle Creek +543 Unincorporated Areas of Cabarrus County, City of Concord. Approximately 1,300 feet upstream of Chapel Creek Road Southwest +551 Coddle Creek Tributary 3 Approximately 200 feet upstream of the confluence with Coddle Creek +569 City of Concord. Approximately 1.0 mile upstream of Roberta Church Road +598 Cold Water Creek At the confluence of Little Cold Water Creek +550 Unincorporated Areas of Cabarrus County, City of Concord, City of Kannapolis. Approximately 0.5 mile upstream of Moose Road +653 Common Ford Branch Approximately 0.4 mile upstream of Penninger Road (State Road 2113) +618 Unincorporated Areas of Cabarrus County. Approximately 1.5 miles upstream of Penninger Road (State Road 2113) +682 Dutch Buffalo Creek Approximately 150 feet upstream of NC 73 +524 Unincorporated Areas of Cabarrus County. Approximately 1,120 feet upstream of Sapp Road (State Road 2402) +684 Dutch Buffalo Creek Tributary 1 At the confluence with Dutch Buffalo Creek +674 Unincorporated Areas of Cabarrus County. Approximately 0.7 mile upstream of Pless Road (State Road 2432) +688 Horton Branch Approximately 80 feet upstream of Bethel Church Road (State Road 1125) +575 Unincorporated Areas of Cabarrus County. Approximately 0.6 mile upstream of Sam Black Road (State Road 1127) +632 Irish Buffalo Creek Approximately 600 feet upstream of Cannon Farm Road +733 City of Kannapolis. Approximately 0.9 mile upstream of Cannon Farm Road +744 Irish Buffalo Creek Tributary 1 Approximately 350 feet upstream of the confluence with Irish Buffalo Creek +611 City of Concord. Approximately 910 feet upstream of Hanover Drive Northwest +639 Irish Buffalo Creek Tributary 2 Approximately 1,200 feet upstream of the confluence with Irish Buffalo Creek +624 City of Concord, City of Kannapolis. Approximately 1,950 feet upstream of Orphanage Road +645 Irish Buffalo Creek Tributary 3 Approximately 750 feet upstream of the confluence with Irish Buffalo Creek +671 City of Kannapolis. Approximately 500 feet upstream of Mooresville Road +704 Irish Buffalo Creek Tributary 4 Approximately 1,250 feet upstream of the confluence with Irish Buffalo Creek +735 City of Kannapolis. Approximately 0.7 mile upstream of the confluence with Irish Buffalo Creek +745 Irish Buffalo Creek Tributary 5 Approximately 1,350 feet upstream of the confluence with Irish Buffalo Creek +735 City of Kannapolis. Approximately 0.7 mile upstream of the confluence with Irish Buffalo Creek +750 Jones Branch Approximately 500 feet upstream of the confluence with Rocky River +530 Unincorporated Areas of Cabarrus County. Approximately 1,690 feet upstream of Falcon Drive (State Road 1269) +595 Lick Branch At the confluence with Dutch Buffalo Creek +666 Unincorporated Areas of Cabarrus County. Approximately 1,160 feet upstream of Sapp Road (State Road 2402) +740 Little Buffalo Creek At the confluence with Dutch Buffalo Creek +531 Unincorporated Areas of Cabarrus County. Approximately 1.9 miles upstream of Drye Road (State Road 2443) +593 Little Meadow Creek Approximately 100 feet upstream of Reed Mine Road (State Road 1100) +501 Unincorporated Areas of Cabarrus County. Approximately 330 feet upstream of County Line Road (State Road 2623) +607 Mallard Creek Approximately 2,250 feet upstream of Morehead Road +570 Unincorporated Areas of Cabarrus County, Town of Harrisburg. At the Cabarrus/Mecklenberg County boundary +576 Mallard Creek Tributary 1 At the confluence with Mallard Creek +571 Town of Harrisburg. At the Cabarrus/Mecklenberg County boundary +590 Mallard Creek Tributary 1A At the confluence with Mallard Creek Tributary 1 +571 Town of Harrisburg. Approximately 1.0 mile upstream of the confluence with Mallard Creek Tributary 1 +643 Mallard Creek Tributary 1B At the confluence with Mallard Creek Tributary 1 +586 Town of Harrisburg. Approximately 1,650 feet upstream of the confluence with Mallard Creek Tributary 1 +623 Mallard Creek Tributary 2 At the confluence with Mallard Creek +573 City of Concord, Town of Harrisburg. Approximately 1,290 feet upstream of Hudspeth Road (State Road 1302) +634 Meadow Creek Approximately 1,500 feet downstream of Reed Mine Road (State Road 1100) +495 Unincorporated Areas of Cabarrus County. Approximately 0.5 mile upstream of Reed Mine Road (State Road 1100) +500 Mill Creek At the confluence with Coddle Creek +650 Unincorporated Areas of Cabarrus County, City of Kannapolis. Approximately 100 feet upstream of the Cabarrus/Rowan County boundary +715 Miller Branch Approximately 250 feet upstream of the confluence with Irish Buffalo Creek +656 Unincorporated Areas of Cabarrus County, City of Kannapolis. Approximately 0.9 mile upstream of Mooresville Road +767 Morris Branch Approximately 660 feet upstream of the confluence with Rocky River +566 Town of Harrisburg. Approximately 1,280 feet upstream of Rocky River Crossing Road +602 Muddy Creek At the confluence with Rocky River +478 Unincorporated Areas of Cabarrus County, Town of Midland. Muddy Creek Tributary 1 At the confluence with Muddy Creek +492 Unincorporated Areas of Cabarrus County, Town of Midland. Approximately 150 feet upstream of NC 24-27 Highway E +525 Overcash Branch Approximately 1,000 feet upstream of the confluence with Irish Buffalo Creek +664 City of Kannapolis. Approximately 740 feet upstream of Quailwoods Court +697 Park Creek At the confluence with Coddle Creek +652 Unincorporated Areas of Cabarrus County. At the Cabarrus/Rowan County boundary +679 Patterson Branch Tributary Approximately 75 feet upstream of the confluence with Patterson Branch +703 City of Kannapolis. Approximately 1,800 feet upstream of Beaumont Avenue +747 Ridenhour Branch At the downstream side of Colfax Drive Southeast (State Road 2513) +552 Unincorporated Areas of Cabarrus County, City of Concord. Approximately 0.5 mile upstream of the confluence of Ridenhour Branch Tributary +628 Ridenhour Branch Tributary At the confluence with Ridenhour Branch +599 Unincorporated Areas of Cabarrus County, City of Concord. Approximately 1.2 miles upstream of Lake Lynn Road (State Road 2640) +671 Rocky River At the Union/Stanly/Cabarrus County boundary +469 Unincorporated Areas of Cabarrus County, City of Concord, City of Kannapolis, Town of Harrisburg, Town of Midland. At the Cabarrus/Mecklenberg/Iredell County boundary +687 Rocky River Tributary 11 Approximately 200 feet downstream of NC 200 +508 Unincorporated Areas of Cabarrus County. Approximately 0.7 mile upstream of NC 200 +555 Rocky River Tributary 14 Approximately 500 feet upstream of confluence with Rocky River +561 Town of Harrisburg. Approximately 1,700 feet upstream of Rocky River Crossing Road +574 Rogers Lake Branch Approximately 100 feet upstream of Rogers Lake Road +715 City of Kannapolis. Approximately 190 feet upstream of Richard Avenue +742 Royal Oaks Branch Approximately 350 feet upstream of the confluence with Cold Water Creek +582 Unincorporated Areas of Cabarrus County, City of Concord, City of Kannapolis. Approximately 650 feet upstream of Lake Concord Road +660 Shamrock Branch Approximately 75 feet downstream of Wilson Street +595 City of Concord. Approximately 1,050 feet upstream of Shamrock Street Northeast +644 Stricker Branch Approximately 750 feet upstream of the confluence with Irish Buffalo Creek +597 City of Concord. Approximately 180 feet upstream of NC 73 +636 Threemile Branch At the confluence with Cold Water Creek +558 City of Concord, City of Kannapolis. Approximately 370 feet upstream of Plymouth Street +751 Water Creek Approximately 500 feet upstream of the confluence with Little Cold Water Creek +586 Unincorporated Areas of Cabarrus County. Approximately 0.7 mile upstream of Gold Hill Road (State Road 2408) +625 Yow Branch Approximately 80 feet upstream of NC 200 +507 Unincorporated Areas of Cabarrus County, Town of Mount Pleasant. Approximately 1,130 feet upstream of NC 200 Highway +507 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Concord Maps are available for inspection at City of Concord GIS Division, 66 Union Street South, Concord, North Carolina. City of Kannapolis Maps are available for inspection at Kannapolis City Hall, 246 Oak Avenue, Kannapolis, North Carolina. Town of Harrisburg Maps are available for inspection at Harrisburg Town Hall, 4100 Main Street, Suite 101, Harrisburg, North Carolina. Town of Midland Maps are available for inspection at Midland Town Hall, 4293B Highway 24-27 East, Midland, North Carolina. Town of Mount Pleasant Maps are available for inspection at Mount Pleasant Town Hall, 8590 Park Drive, Mount Pleasant, North Carolina. Unincorporated Areas of Cabarrus County Maps are available for inspection at Cabarrus County Planning Services Department, 65 Church Street Southeast, Concord, North Carolina. Fayette County, Tennessee, and Incorporated Areas Docket Nos.: FEMA-B-7702 & FEMA-D-7824 Cane Creek At the confluence of Little Cypress Creek +278 Fayette County (Unincorporated Areas), Town of Gallaway. Approximately 7,000 feet upstream of Centerpoint Drive +297 Cane Creek Tributary At the confluence with Cane Creek +284 Town of Gallaway. Approximately 800 feet upstream of Highway 70 +295 Cypress Creek Just upstream of Highwy 64 +296 Fayette County (Unincorporated Areas). Approximately 1,300 feet upstream of State Highway 196 +310 Grays Creek Approximately 1,980 feet southwest of the intersection of Seward Drive and Jacobs Way +343 Fayette County (Unincorporated Areas). Approximately 4,980 feet southwest of the intersection of Seward Drive and Walnut Hill Way +359 North Fork Wolf River At the confluence with Wolf River +339 Fayette County (Unincorporated Areas). Approximately 11,400 feet upstream of State Highway 76 +361 Wolf River Unnamed Tributary 1 (Controlled by Wolf River) Approximately 1,600 feet upstream of the confluence with Wolf River +300 City of Piperton, Unincorporated Areas of Fayette County. Approximately 5,170 feet upstream of the confluence with Wolf River +300 Wolf River Unnamed Tributary 2 (Controlled by Wolf River) Approximately 2,750 feet upstream of the confluence with Wolf River +300 Unincorporated Areas of Fayette County. Approximately 4,300 feet upstream of the confluence with Wolf River +300 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Town of Gallaway Maps are available for inspection at 607 Watson Drive, Gallaway, TN 38036. City of Piperton Maps are available for inspection at 3575 Highway 196, Piperton, TN 38017. Fayette County (Unincorporated Areas) Maps are available for inspection at 16265 Highway 64, Suite 4, Somerville, TN 38068. Gibson County, Tennessee, and Incorporated Areas Docket No.: FEMA-B-7740 Clear Creek At the confluence with Wolf Creek +396 Unincorporated Areas of Gibson County. Approximately 2,300 feet upstream of the confluence with Wolf Creek +401 Wolf Creek Approximately 480 feet upstream of State Highway 104 +395 Unincorporated Areas of Gibson County. Approximately 2,211 feet upstream of State Highway 104 +397 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Gibson County Maps are available for inspection at 309 S. College Street, Trenton, TN 38382. Obion County, Tennessee, and Incorporated Areas Docket No.: FEMA-B-7740 Fifteenth Street Tributary Approximately 1,740 feet upstream of the confluence with Richland Creek +284 Unincorporated Areas of Obion County. At the confluence with Richland Creek +284 Grove Creek Approximately 2,070 feet downstream of State Highway 22 +311 Unincorporated Areas of Obion County. Approximately 950 feet downstream of State Highway 22 +313 Hoosier Creek Approximately 1,950 feet downstream of State Highway 3 +314 Unincorporated Areas of Obion County. Approximately 1,250 feet downstream of State Highway 3 +314 Johnson Hurt Avenue Tributary At the confluence with Obion River +284 Unincorporated Areas of Obion County. Approximately 1,070 feet upstream of the confluence with Obion River +284 Obion River Just upstream of State Highway 3 +284 Unincorporated Areas of Obion County. Approximately 2,400 feet upstream of State Highway 211 +284 Obion River Drainage Canal Just upstream of State Highway 3 +284 Unincorporated Areas of Obion County. Approximately 4,280 feet upstream of State Highway 211 +284 Old Obion River Drainage Canal Just upstream of State Highway 3 +284 Unincorporated Areas of Obion County. Approximately 2,800 feet upstream of State Highway 211 +284 Pursley Creek Approximately 320 feet upstream Nailing Drive +323 Unincorporated Areas of Obion County. Approximately 800 feet downstream of State Highway 3 +332 Richland Creek At the confluence with Obion River +284 Unincorporated Areas of Obion County. Approximately 100 feet downstream of West Palestine Road +284 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Obion County Maps are available for inspection at County Mayor, P.O. Box 236, Union City, TN 38281. Rhea County, Tennessee, and Incorporated Areas Docket No.: FEMA-B-7740 Little Richland Creek Tributary At the confluence of Little Richland Creek +695 City of Dayton, Unincorporated Areas of Rhea County. Approximately 210 feet downstream of Back Valley Road +736 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Dayton Maps are available for inspection at Dayton City Hall, 399 First Avenue, Dayton, TN 37321. Unincorporated Areas of Rhea County Maps are available for inspection at Rhea County Property Assessor's Office, 375 Church Street, Suite 100, Dayton, TN 37321. Weakley County, Tennessee, and Incorporated Areas Docket No.: FEMA-B-7740 Cane Creek Approximately 50 feet upstream of Mount Pelia Road +337 Unincorporated Areas of Weakley County. Approximately 450 feet downstream of the confluence with Cane Creek Tributary +344 Cane Creek Tributary Just Upstream of Gardener Hyndsver Road +363 Unincorporated Areas of Weakley County. Approximately 70 feet downstream of Old Fulton Road +371 Mud Creek Just downstream of State Route 22 +365 City of Dresden. Approximately 900 feet upstream of Boydenville Road +402 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Dresden Maps are available for inspection at 117 W. Main Street, Dresden, TN 38225. Unincorporated Areas of Weakley County Maps are available for inspection at 116 W. Main Street, Dresden, TN 38225. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: May 9, 2008. Michael K. Buckley, Deputy Assistant Administrator for Mitigation, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-10931 Filed 5-15-08; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 153 [Docket ID FEMA-2005-0001; Legacy ID DHS-2005-0006] RIN 1660-AA34 Assistance Program Under the 9/11 Heroes Stamp Act of 2001 AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: The 9/11 Heroes Stamp Act of 2001 directed the United States Postal Service to issue a semipostal stamp and distribute the proceeds through the Federal Emergency Management Agency

(FEMA)to the families of emergency relief personnel killed or permanently disabled while serving in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001. In response, FEMA issued interim regulations that governed the distribution of those funds. Now that all funds have been distributed and all appeals resolved, FEMA is issuing this Final rule to remove the interim regulations from the Code of Federal Regulations. DATES: This final rule is effective May 16, 2008. FOR FURTHER INFORMATION CONTACT: Jotham Allen, Office of Chief Counsel, Federal Emergency Management Agency, Department of Homeland Security, 500 C Street, SW., Room 840, Washington, DC 20472, (phone) 202- 646-1957, (facsimile) 202-646-4536, or (e-mail) *Jotham.allen@dhs.gov.* SUPPLEMENTARY INFORMATION: I. Background The 9/11 Heroes Stamp Act of 2001, Public Law 107-67, sec. 652, 115 Stat. 557 (Nov. 12, 2001) (Heroes Stamp Act), directed the United States Postal Service

(USPS)to issue a semipostal stamp and distribute the proceeds through the Federal Emergency Management Agency

(FEMA)to the families of emergency relief personnel killed or permanently disabled while serving in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001. A semipostal stamp is a type of postage that is sold for a value greater than that of a regular first class stamp. The proceeds from the price differential between the sale price of the stamp and the cost of the postage fund the distribution, minus the USPS' cost to produce and distribute the stamps. No administrative costs were deducted by FEMA. The USPS issued the Heroes semipostal stamp in June 2002, and stopped selling it on December 31, 2004. The sum of $10,565,073.61 was provided to FEMA by USPS from stamp sales during that time period. On July 26, 2005, FEMA published an interim rule at 70 FR 43214 establishing a program to distribute the funds raised from the sale of the Heroes semipostal stamp. Under the program, eligible claimants were those emergency relief personnel acting in their official capacity who were permanently physically disabled, or the families of such personnel who were killed in the line of duty while serving at the World Trade Center, Pentagon, or Shanksville, PA site in connection with the terrorist attacks against the United States on September 11, 2001. In determining whether a claimant had a permanent physical disability, FEMA relied on determinations made by appropriate Federal, State, and local agencies, as well as appropriate private entities. The interim rule also created an appeals process. This process allowed an applicant to appeal a determination made by FEMA that the applicant was not eligible. The applicant was required to submit a notice of intent to appeal within 15 calendar days of the issuance of FEMA's determination of eligibility. The written appeal could not exceed 15 pages, exclusive of supporting documentation, and had to be submitted within 60 calendar days of the issuance of FEMA's determination of eligibility. New documentation was accepted on appeal. Appeals determinations were made by the Appeals Specialist in FEMA's Office of Dispute Resolution. The amount of assistance granted under the Heroes Stamp Act was within FEMA's discretion. The interim final rule established that FEMA would, to the extent possible, distribute the funds equally among all eligible claimants until the fund was liquidated. Multiple distributions were allowed with monies set aside for applicants who appealed their initial determination of ineligibility. On December 7, 2005, FEMA published a notice (70 FR 72845) that announced that the application period for the Assistance Program Under the 9/11 Heroes Stamp Act of 2001 would run from December 2, 2005 to April 3, 2006. Eligibility determinations were made by the Heroes Stamp Panel who conducted nine meetings between February and November 2006 to make the determinations. Applicants were considered on a rolling basis and were informed of their eligibility decisions by United States mail. Of the 1,945 total applications received during the application period, the Panel deemed 1,356 eligible. Each applicant received a letter notifying them of their eligibility determination, and for those deemed eligible, FEMA provided an Electronic Funds Transfer form to be completed and returned to FEMA. Between November 2006 and April 2007, FEMA distributed $7,400 to each eligible applicant, who supplied the necessary banking information for the Electronic Funds Transfer. Of the 589 applicants found ineligible, 64 submitted appeals. During the appeals process, 21 of these applicants submitted additional information and were found eligible. This brought the total number of eligible applicants to 1,377. In July 2007, the remaining amount of the fund was distributed. In total, 1,357 of the eligible applicants received $7,672.53; the final 20 applicants received $7,672.52. This difference was required in order to liquidate the entire amount of the funds raised. II. Discussion of Public Comments FEMA received 36 comments from the public regarding the interim rule. The comments received, together with FEMA's responses, are set forth below. All previously published rulemaking documents, as well as all comments received are available in the public docket for this rulemaking. The public docket for this rulemaking is available online by conducting a search for Docket ID FEMA-2005-0001 or Legacy ID DHS-2005-0006, at the Federal e-Rulemaking Portal at *www.regulations.gov.* *Continuation of semipostal stamp:* Two comments suggested that the Heroes semipostal stamp should be continued. FEMA could not implement this suggestion. The Heroes Stamp Act specified that the stamp be issued for such period of time that USPS considered necessary and appropriate, but in no event could it continue issuing the stamp after December 31, 2004. USPS discontinued selling the Heroes semipostal stamp on December 31, 2004. *Eligibility:* Seven comments suggested that iron, steel, and construction workers should be included in the definition of emergency relief personnel; one comment expressed concern that HAZMAT response teams might not be eligible under the program; seven comments suggested that the funds should be available to all victims of September 11, 2001, not just emergency relief personnel; three comments suggested that non-uniformed volunteers should be eligible to receive funds; and another commenter suggested that the funds should only be distributed to rescue workers and emergency volunteers who have been disabled and that the funds should not be distributed to the police and firefighter families unless there are extenuating circumstances. While FEMA recognizes that iron, steel, and construction workers performed an invaluable service in response to the terrorist attacks of September 11, 2001, FEMA determined that these workers did not fall within the statutory definition of emergency relief personnel set out in the Heroes Stamp Act. The statutory definition of emergency relief personnel included a specific list of occupations, which did not include iron, steel, or construction workers. It included firefighters, law enforcement officers, paramedics, emergency medial technicians, and members of the clergy. The Heroes Stamp Act did provide for inclusion in that definition “other individuals (including employees of legally organized and recognized volunteer organizations, whether compensated or not) who, in the course of professional duties, respond to fire, medical, hazardous material, or other similar emergencies.” FEMA determined that iron, steel, and construction workers do not fall under the statutory definition because they do not typically respond, in the course of their professional duties, to fire, medical, hazardous material, or other similar emergencies. The language of the statute also limited FEMA from distributing the funds to all victims of the September 11, 2001 attacks, or to all individuals who provided assistance. The Heroes Stamp Act directed that the funds were for emergency workers who had been permanently disabled and the families of emergency workers killed. The Heroes Stamp Act contained no provisions regarding other civilian victims. Furthermore, the Act did not give FEMA discretion relating to need or extenuating circumstances. It was left to FEMA's discretion to determine the distribution of the funds, and it decided to distribute funds equally among all eligible applicants, including the families of police and firefighters. With respect to HAZMAT responders, FEMA did consider them to be in an eligible class of responders. The interim rule used the same definition for emergency relief personnel as the Heroes Stamp Act, which includes response to hazardous material: “firefighters, law enforcement officers, paramedics, emergency medical technicians, members of the clergy, or other individuals * * * who, in the course of professional duties, respond to fire, medical, *hazardous material,* or other similar emergencies” (emphasis added). Although FEMA did not keep a tally sheet of each class of worker who received funds from sale of the stamp, FEMA would have considered a HAZMAT worker to be well within the statutory definition of emergency relief personnel set out in the Heroes Stamp Act. Amount of funds distributed to each applicant: Three comments suggested that the funds raised through the sale of the Heroes semipostal stamp should be divided equally among all eligible applicants, while one comment suggested that those applying on behalf of deceased individuals should receive larger distribution than permanently disabled applicants. It was also suggested that geographic cost of living differences should be taken into account. The Heroes Stamp Act left the manner of distribution within FEMA's discretion. The funds were, to the extent possible, distributed equally among the eligible applicants. Factors considered by FEMA in its decision included the limited funds available to distribute, FEMA's limited ability to assess degrees of disability, and an inherent sense of fairness in providing everyone the same amount. *Interest:* One comment questioned whether interest was earned on the funds, and suggested that any earned interest should be distributed to the applicants. Interest was not earned on the funds. Funds generated as the result of a statute, such as the Heroes Stamp Act, that authorizes the imposition and collection of specific charges and the use of the funds generated, are appropriated funds. In the absence of an express provision in the statute to the contrary, the funds are subject to the various restrictions and limitations on the uses of appropriated moneys (35 Comp. Gen. 615 (1956), 57 Comp. Gen. 311 (1978)). Given that these funds are appropriations, and lacking any specific statutory authority to invest and retain interest in the established fund or account, the accretions would have been required to be deposited to the Miscellaneous Receipts of the Treasury. (31 U.S.C. 3302) FEMA was prohibited from distributing any earned interest to the applicants, and therefore opted not to deposit the funds in an interest bearing account. *Distribution by FEMA:* One comment asked why FEMA was distributing the funds. In the Heroes Stamp Act, Congress directed USPS to transfer the funds to FEMA to carry out distribution. *Date of distribution unclear:* Three comments noted that the interim final rule did not include a date of distribution. A number of factors precluded FEMA from providing a date of distribution in the interim rule. First, the interim final rule did not include an application period. At that point, before the application period had been determined, it would not have been feasible to set a date of distribution. Additionally, when the interim rule was published FEMA had no way to determine the number of applications it would receive. Finally, because funds were distributed through Electronic Funds Transfer, the timing of distribution to each applicant depended on how quickly the applicant provided banking information. *Complicated application process:* One comment stated that the application process was too complicated. FEMA made every effort to make the application process as simple as possible. The application contained detailed instructions, FEMA set up a dedicated phone number and e-mail address for questions or concerns, and questions were answered clearly and promptly. Additional information, including a copy of the interim rule was made available on the United States Fire Administration's Web site. *Unclear appeal process:* Two commenters stated that the interim final rule was unclear regarding timelines and deadlines for the appeals process. FEMA disagrees. To appeal an ineligibility determination, applicants were required to submit to FEMA's Appeals Specialist a notice of intent to appeal within 15 calendar days of the issuance of FEMA's determination of eligibility. The notice was required to contain a brief statement explaining why the applicant believed the determination was incorrect. Within 60 calendar days after the issuance of FEMA's determination, the applicant was required to submit their full written appeal, not to exceed 15 pages exclusive of supporting documentation. The address to submit the notice of intent to appeal and the appeal were also provided. This information was detailed in § 153.8 of the rule. It was also restated, along with the reason for their denial, in the letters that were sent to applicants who were denied. *Contact family of victims:* One comment suggested that applications from affected personnel or their survivors should be compared to known names of victims to make sure no families are missed. FEMA made every effort to publicize the Heroes Stamp Program to ensure that all potentially eligible people would be aware of the program and its requirements. In addition to the interim rule and postings on the United States Fire Administration Web page, several outreach efforts were conducted prior to and early in the application process. These included face to face briefings with impacted New York City agencies and their labor unions, and discussions with agencies in Shanksville, PA, and emergency relief agencies in areas surrounding the Pentagon. Broadcast e-mails also were forwarded to all of the urban search and rescue

(USAR)teams that assisted at the three locations. The media also carried stories regarding the availability of the program and how to apply. Finally, the New York City Police Department, Fire Department, and Port Authority all cooperated and coordinated with the Heroes Stamp Project office by providing special assistance and individual notification directly to survivors of the deceased about how to avail themselves of the program. *Permanent disability should not be required:* One comment suggested that eligible injuries should not be required to be permanent disabilities, and two comments suggested that those with permanent mental disabilities should be eligible as well as those with permanent physical disabilities. The Heroes Stamp Act specifically limited the assistance to emergency relief personnel killed or permanently disabled. Congress left FEMA no discretion in this area. The Heroes Stamp Act did not, however, define the term “permanently disabled”. Within its discretion, FEMA decided that the intent of the Heroes Stamp Act was best met by interpreting that term to mean physically disabled. Validating “permanent mental disabilities” was found to be too difficult. Further, considering the relatively small amount of funds FEMA had to distribute, it was determined that further widening eligibility would further reduce the amount of funds available for distribution to those with clear cut permanent physical disabilities. *Focus on Pentagon and Shanksville, PA:* One comment suggested that the program should focus on those who responded to the events in Shanksville, PA and at the Pentagon. The Heroes Stamp Act directed that the funds be made available to the families of emergency workers killed or permanently disabled while serving in the line of duty while responding to the terrorist attacks against the United States on September 11, 2001. FEMA believed that the Congressional intent was for the funds to be available to personnel injured or killed in response to all of the terrorist attacks against the United States on September 11, 2001. Since the terrorist attacks on September 11, 2001 took place at the World Trade Center, the Pentagon, and Shanksville, Pennsylvania, the interim rule made clear that all three locations were included in the program. *Portion for support agencies:* One comment suggested that a portion of the funds should be directed to nonprofit World Trade Center agencies. The Heroes Stamp Act was clear that the funds were to be distributed to the emergency relief workers themselves or their families. The interim rule followed this statutory language. Congress left FEMA no discretion in this area. *Original intent of legislation:* Two comments asked that FEMA follow the original intent of the Heroes Stamp Act. FEMA agreed. The Heroes Stamp Act states that the semipostal stamp was to be issued “in order to afford the public a direct and tangible way to provide assistance to the families of emergency relief personnel killed or permanently disabled in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001.” The Heroes Stamp Act directed FEMA to carry out this purpose. FEMA, within its discretion, promulgated the interim rule and distributed the funds in order to best carry out this intent. *Determinations:* One comment suggested that the interim rule was unclear as to who would review applications and make final determinations on eligibility. The Heroes Stamp Act contained no provisions relating to the review process. Within its discretion, FEMA formed a Heroes Stamp Panel which conducted 9 meetings between February and November 2006 to make the final eligibility determinations on all 1,945 applications. The panel's five members represented FEMA's Office of Chief Counsel (formerly the Office of General Counsel), the Office of Legislative Affairs, and the United States Fire Administration. In making their final eligibility determinations, these individuals largely relied upon determinations of permanent physical disability made by appropriate Federal, State, and local agencies, as well as appropriate private entities. III. Regulatory Requirements A. Administrative Procedure Act As noted in the interim rule, FEMA found good cause under 5 U.S.C. 553(d)(3) to issue an interim rule which would take effect upon the closure of the comment period because delay would be impracticable in light of the eligible individuals' need for relief. FEMA also noted that prompt disbursement of the benefits from the Heroes Stamp sales proceeds was in the public interest. FEMA received no adverse comments as to the finding of good cause. Now that all funds have been distributed and all appeals resolved, FEMA is removing the regulatory text from the Code of Federal Regulations. FEMA again finds good cause not to take public comment or wait 30 days before making this rule effective under 5 U.S.C. 553(b) and (d). Because all of the funds available from the sale of the Heroes Stamp have been distributed, and all appeals have been resolved, there is no longer any need for these regulations. Allowing public comment and/or delaying the effectiveness of this rule for 30 days is unnecessary. B. Executive Order 12866, Regulatory Planning and Review FEMA prepared and reviewed this rulemaking under the provisions of Executive Order 12866, Regulatory Planning and Review. Although the interim rule was determined to be a significant, but not economically significant regulatory action, now that all funds have been distributed and all appeals resolved these regulations no longer serve a purpose to FEMA or the public. OMB has determined that this rule is not a significant regulatory action. OMB has not reviewed this rule. C. Regulatory Flexibility Act Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FEMA is not required to prepare a final regulatory flexibility analysis for this final rule because the agency has not issued a notice of proposed rulemaking. D. National Environmental Policy Act

(NEPA)In the interim rule, FEMA determined that this rule fell within the exclusion category of 44 CFR 10.8(d)(2)(ii), which excludes from NEPA requirements the preparation, revision, adoption of regulations, directives, manuals, and other guidance documents related to actions that qualify for categorical exclusions. No commenters disagreed with our determination. The rulemaking provided for disbursement of funds received from the sale of the Heroes Stamp to emergency relief personnel who were permanently disabled while serving in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001, or to the families of such personnel who were killed in such line of duty. The rule had no significant effect on the human environment. Because no other extraordinary circumstances have been identified, this rule does not require the preparation of either an environmental assessment or an environmental impact statement as defined by NEPA. E. Executive Order 12898, Environmental Justice Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” 59 FR 7629, February 16, 1994, each Federal agency is required to conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that those programs, policies, and activities do not have the effect of excluding persons from participation, denying persons benefits of our programs, or subjecting persons to discrimination because of their race, color, or national origin. This final rule removes regulations that implemented the 9/11 Heroes Stamp Act of 2001. The Heroes Stamp Act provided for the sale of the Heroes Stamp and for disbursement of the proceeds to emergency relief personnel who were permanently disabled while serving in the line of duty in connection with the terrorist attacks against the United States on September 11, 2001, or to the families of such personnel who were killed in such line of duty. There were no effects on human health or the environment as a result of this rulemaking, and the Heroes Stamp funds were distributed without regard to race, color, or national origin; thus the requirements of Executive Order 12898 do not apply to this rule. F. Congressional Review of Agency Rulemaking FEMA has sent this final rule to the Congress and to the Government Accountability Office under the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801-808. The rule is not a “major rule” within the meaning of that Act. This rule will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have “significant adverse effects” on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises. G. Unfunded Mandates Reform Act This rule is not an unfunded mandate within the meaning of the Unfunded Mandates Reform Act of 1995, 5 U.S.C. 1531-1538. This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, nor by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no action is required by the provisions of the Unfunded Mandates Reform Act of 1995. H. Executive Order 13132, Federalism Executive Order 13132, “Federalism,” (64 FR 43255, August 10, 1999), sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications. This rule provided for the distribution of funds collected from the sale of the semipostal Heroes Stamp. It had no 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. It did not preempt any State laws. As noted in the interim rule, FEMA determined that this rule did not have sufficient federalism implications sufficient to warrant the preparation of a federalism impact statement. This final action which removes the interim regulations likewise has no federalism implications. I. Paperwork Reduction Act The interim rule contained information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 *et seq.* Under the PRA, a person may not be penalized for failing to comply with an information collection that does not display a currently valid OMB control number. The information collection, which includes FEMA Form 75-14, the 9/11 Heroes Stamp Act of 2001 Eligibility and Application for Benefits form, was approved under OMB number 1660-0091 with an expiration date of July 2008. The Paperwork Reduction Act Collection Discontinuation Form for 1660-0091 was filed on August 15, 2007. J. Executive Order 13175, Consultation With and Coordination With Indian Tribal Governments FEMA has reviewed this rule under Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). This 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. K. Executive Order 12988, Civil Justice Reform FEMA has reviewed this rule under Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996). This rule meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden. List of Subjects in 44 CFR Part 153 Disaster assistance, Emergency relief personnel, Terrorism. Accordingly, for the reasons stated in the preamble, and under the authority of 5 U.S.C. 301 and 6 U.S.C. 101 *et seq.* , FEMA amends 44 CFR chapter 1, by removing part 153. PART 153—[REMOVED AND RESERVED] R. David Paulison, Administrator, Federal Emergency Management Agency. [FR Doc. E8-10936 Filed 5-15-08; 8:45 am] BILLING CODE 9110-17-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket Nos. 07-294; 06-121; 02-277; 04-228, MM Docket Nos. 01-235; 01-317; 00-244; FCC 07-217] In the Matter of Promoting Diversification of Ownership in the Broadcasting Services AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document adopts rule changes designed to expand opportunities for participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses. DATES: The rule amendments to §§ 73.2090, 73.3555, 73.3598 and 73.5008 adopted in this *Report and Order* will be effective July 15, 2008. Changes to FCC Forms required as the result of the rule amendments adopted herein will become effective 30 days after the Commission publishes a notice in the **Federal Register** announcing approval by the Office of Management and Budget of the forms. FOR FURTHER INFORMATION CONTACT: Mania Baghdadi,

(202)418-2133. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's *Report and Order and Third Further Notice of Proposed Rulemaking* (the “Order”) in MB Docket Nos. 07-294; 06-121; 02-277; 04-228, MM Docket Nos. 01-235; 01-317; 00-244; FCC 07-217, adopted December 18, 2007, and released March 5, 2008. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( *http://www.fcc.gov/cgb/ecfs* ). The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording and Braille), send an e-mail to *fcc504@fcc.gov* or call the FCC's Consumer and Governmental Affairs Bureau at

(202)418-0530 (voice)(202) 418-0432 (TTY). Summary of the Report and Order 1. This Order was adopted to expand opportunities for participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses. It has long been a basic tenet of national communications policy that the widest dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. By broadening participation in the broadcast industry, the Commission seeks to strengthen the diverse and robust marketplace of ideas that is essential to our democracy. As the Supreme Court has recognized, “Safeguarding the public's right to receive a diversity of views and information over the airwaves is * * * an integral component of the FCC's mission.” *Metro Broadcasting, Inc.* v. *FCC,* 497 U.S. 547, 567 (1990), *overruled in part on other grounds in Adarand Constructors Inc.* v. *Pena,* 515 U.S. 200, 227 (1995). Beyond fostering viewpoint diversity, the Commission also believes that taking steps to facilitate the entry of new participants into the broadcasting industry may promote innovation in the field because in many cases, the most potent sources of innovation often arise not from incumbents but from new entrants. The Commission believes that this may be particularly true with respect to small businesses, including those owned by minorities and women. Expanding the pool of potential competitors in media markets to include such businesses should bring new competitive strategies and approaches by broadcast station owners in ways that benefit consumers in those markets. The new rules will help eligible entities with access to financing and availability of spectrum. A. Definition of Eligible Entities 2. To define the group intended to receive the benefits of the measures adopted in the Order, the Commission uses the term “eligible entity,” defined as an entity that would qualify as a small business consistent with Small Business Administration (“SBA”) standards for its industry grouping, based on revenue. At present, the SBA defines as a small business a television broadcasting station that has no more than $13 million in annual receipts and a radio broadcasting entity that has no more than $6.5 million in annual receipts. To determine qualifications as a small business, the SBA considers the revenues of the parent corporation and affiliates of the parent corporation, not just the revenues of individual broadcast stations. In addition, in order to ensure that ultimate control rests in an eligible entity that satisfies the revenue criteria, the entity must satisfy one of several control tests. The eligible entity must hold:

(1)30 percent or more of the stock/partnership shares and more than 50 percent voting power of the corporation or partnership that will hold the broadcast license; or

(2)15 percent or more of the stock/partnership shares and more than 50 percent voting power of the corporation or partnership that will hold the broadcast licenses, provided that no other person or entity owns or controls more than 25 percent of the outstanding stock or partnership interests; or

(3)more than 50 percent of the voting power of the corporation if the corporation that holds the broadcast licenses is a publicly traded company. The Commission concludes that use of this definition of “eligible entity” will advance its objectives of promoting diversity of ownership in the broadcast industry by making it easier for small businesses and new entrants—that otherwise might find it difficult or impossible to compete—to acquire a license and attract the capital necessary to compete in the marketplace with larger and better financed companies. In addition, by facilitating entry into the broadcast industry by new entrants, the Commission hopes that these measures will result in a wider array of programming services, including some that are responsive to local needs and interests and audiences that are currently underserved. The Commission anticipates that small businesses will be more likely than large corporations to have ties to the communities that they seek to serve, and thus be more attuned to local needs and interests. B. Actions To Expand Opportunities for Eligible Entities 3. *Revision of Rules Regarding Construction Permit Deadlines.* The Order revises § 73.3598 of the Commission's rules to afford eligible entities that acquire an expiring construction permit additional time to build out the facility. Specifically, the Commission allows eligible entities the time remaining on the original construction permit or 18 months, whichever is greater. Section 73.3598 requires that each construction permit for the construction of a new TV, AM, FM, international broadcast, low power TV, TV translator, TV booster, FM translator or FM booster station must specify a period of three years from the date of issuance of the original construction permit within which construction shall be completed and an application for license filed. Construction permits for new LPFM stations allow permittees 18 months to complete construction and file a license application. Generally, any construction permit for which construction has not been completed, and for which an application for license has not been filed, is automatically forfeited upon expiration without any further affirmative cancellation by the Commission. The Commission believes that the extra time the Order provides to eligible entities acquiring an expiring construction permit will advance diversity of ownership, as broadcasters that otherwise would forfeit their construction permits would be motivated to sell them to eligible entities as an alternative. Moreover, it will serve as an appropriate accommodation of the capital constraints and other financial issues that small businesses often confront. The Commission believes that service to the public would be expedited by providing eligible entities up to 18 months additional time to complete construction of an expiring permit, rather than allowing the permit to expire and auctioning the allotment a second time. 4. *Modification of Attribution Rule.* The Order revises the Commission's equity/debt plus (“EDP”) attribution standard to facilitate investment in eligible entities. The Commission's broadcast attribution rules define which financial or other interests in or relationships with a licensee are counted in applying the broadcast ownership rules. The rules “seek to identify those interests in or relationships to licensees that confer on their holders a degree of influence or control such that the holders have a realistic potential to affect the programming decisions of licensees or other core operating functions.” At the same time, the attribution rules are designed to “permit arrangements in which a particular ownership or positional interest involves minimal risk of influence, in order to avoid unduly restricting the means by which investment capital may be made available to the broadcast industry.” With regard to corporate entities, the broadcast attribution rules generally attribute voting stock interests of five percent or more. Minority stock interests in a corporation with a single-majority shareholder, non-voting stock interests, warrants, debt, properly insulated limited partnership and LLC interests, and unexercised options are not attributable, unless the EDP rule is triggered. 5. The EDP rule is designed to resolve concerns that multiple non-attributable interests could be combined to allow the holders to exert significant influence over licensees such that these interests should be counted in applying the multiple ownership rules. Under the EDP rule, where an investor is either

(1)a major program supplier (providing programming constituting over 15 percent of a broadcast station's total weekly broadcast programming hours); or

(2)a same-market media entity subject to the broadcast multiple ownership rules, its interest in a licensee or other media entity will be attributed if that interest, aggregating both debt and equity holdings, exceeds 33 percent of the total assets (equity plus debt) of the licensee or media entity. In other words, attribution results where the financial interest exceeds 33 percent and there is a triggering relationship, i.e., either the investor is a major program supplier or a same-market media entity subject to the broadcast multiple ownership rules. The EDP rule limits the single majority shareholder attribution exemption, as well as the exemptions from attribution applicable to non-voting stock, debt, and properly insulated interests in limited partnerships and LLCs. The EDP rule applies to all of the broadcast ownership rules. 6. Under the revision adopted in the Order, the Commission will allow the holder of an equity or debt interest in a media outlet subject to the media ownership rules to exceed the 33 percent threshold set forth in Note 2(i) to § 73.3555 of the rules without triggering attribution where such investment would enable an eligible entity to acquire a broadcast station, provided that:

(1)The combined equity and debt of the interest holder in the eligible entity is less than 50 percent, or

(2)the total debt of the interest holder in the eligible entity does not exceed 80 percent of the asset value of the station being acquired by the eligible entity and the interest holder does not hold any equity interest, option, or promise to acquire an equity interest in the eligible entity or any related entity. These higher investment limits in eligible entities also apply for purposes of determining eligibility for the new entrant bidding credit in broadcast auctions, as the standards for determining attribution in a winning bidder parallel the attribution standards in § 73.3555, Note 2, which the Commission revises in this Order. 7. The Commission finds sufficient evidence in the record to show that difficulty in accessing capital investment currently is inhibiting diversity of ownership of broadcast stations and new entry. Moreover, the Commission thinks it is reasonable to conclude that modification of the EDP rule could alleviate or, at the least, minimize this problem. The Commission believes that this modification will further its goal of improving access to capital in order to foster diversity of ownership, new entry, and, ultimately, the provision of new programming and other services to the public. The Commission finds sufficient evidence in the record warrants a change in its policy. The Commission also believes that the changes it is making in the Order will retain regulatory certainty for entities in planning their financial transactions, an important goal of the attribution rules, which are designed as bright line tests. Finally, it believes that the public interest weighs in favor of allowing existing broadcasters to acquire a minority equity ownership interest in an eligible entity in order to provide the opportunity for such a new entrant to enter the broadcasting market. 8. *Distress Sale Policy.* The Commission's distress sale policy permits “a licensee whose license has been designated for revocation hearing, or whose renewal application has been designated for hearing on basic qualifications issues, to assign its license prior to commencement of the hearing to a minority controlled entity” at a price that is substantially below its fair market value. Under this policy, a licensee facing the possible loss of its license can sell the station in a “distress sale.” The licensee faces a substantial financial penalty as a result of the “distress” sale but recoups a portion of the value of its station and avoids the revocation or renewal hearing. The Commission saves the time and expense of conducting a revocation or renewal hearing and subsequent appeals. Most important, the station is placed expeditiously in the hands of a qualified operator that might otherwise have few opportunities to acquire a station, and the public does not lose service from a local broadcast station. In the Order, the Commission decided to place the distress sale policy on a sound constitutional and administrative footing by allowing a licensee whose license has been designated for a revocation hearing or whose renewal application has been designated for a hearing on basic qualifications issues to sell its station prior to the commencement of the hearing to an “eligible entity,” as defined in the Order. The Commission believes that this action will promote diversity of ownership in the broadcast industry by making it easier for small businesses and new entrants, including minority-owned businesses, to purchase stations. This, in turn, may result in a greater diversity of program services, including services that are responsive to local needs and interests and the interests of underserved audiences. Similar to the Commission's new rule facilitating the transfer of expiring construction permits to eligible entities, the modified distress sale policy can expedite new service or facilitate the continuation of existing service to the public by avoiding lengthy revocation or renewal hearings and subsequent appeals, and it also conserves substantial private and Commission resources that would otherwise be devoted to such proceedings. The Commission believes this action will serve the public interest by aiding the swift delivery of new services to the public, and the conservation of public and private resources. 9. *Ban on Discrimination in Broadcast Transactions.* The Order adopts a rule that bars discrimination on the basis of race or gender and related protected categories in broadcast transactions. Specifically, the rule states that, “No qualified person or entity shall be discriminated against on the basis of race, color, religion, national origin or sex in the sale of commercially operated AM, FM, TV, Class A TV or international broadcast stations (as defined in this part).” Adoption of a nondiscrimination rule with respect to sales is consistent with the Commission's statutory mandate under 47 U.S.C. 257, which directs the Commission to identify and eliminate, through regulatory action, market entry barriers for entrepreneurs and other small businesses in the provision and ownership of telecommunications and information services, in order to promote the policies and purposes of the Act favoring diversity of media voices, vigorous economic competition, technological advancement, and the promotion of the public interest, convenience and necessity. The new rule will also advance the statutory goal of fostering minority and female ownership in the provision of commercial spectrum-based services and will advance the Commission's public-interest mandate to foster viewpoint diversity by promoting the dissemination of licenses to a wide variety of applicants. The new rule will require sellers to certify compliance with this rule against discrimination by checking a box on Form 314 or 315 applications, which will be amended accordingly. 10. *“Zero Tolerance” Policy for Ownership Fraud.* The Commission adopts a “zero tolerance” policy for ownership fraud and reaffirms its principle that applicants' representations to the Commission must be complete and correct. A commenter notes that ownership fraud occurs when real-parties-in-interest structure transactions so that the principals of the putative applicant entity have no real voice in practice. The commenter states that such fraud may be relatively common. Ownership fraud could impede the Commission's efforts to assess or increase media ownership diversity. The Commission recognizes that rules granting preferences to qualified applicants encourage applicants to qualify for the preference and that some potential applicants will try to claim the preference by creating an appearance of qualification that does not accord with reality. Because the risk of such fraud arises whenever some applicants can obtain a preference, the Commission concludes that adopting a “zero tolerance” policy will help deter and detect ownership fraud. Accordingly, the Order adopts a “zero-tolerance” policy for ownership fraud and states that the Commission should “fast-track” ownership-fraud claims and seek to resolve them within 90 days. 11. *Non-Discrimination Provisions in Advertising Sales Contracts.* The Commission adopts a proposal to require broadcasters renewing their licenses to certify that their advertising sales contracts contain nondiscrimination clauses that prohibit all forms of discrimination. The Commission adopts this requirement in light of reports that some advertising contracts contain “no urban/no Spanish dictates” that are intended to minimize the proportion of African American or Hispanic customers patronizing an advertiser's venue—or that presume that African Americans or Hispanics cannot be persuaded to buy an advertiser's product or service. The Order observes that such clauses may violate U.S. nondiscrimination laws. For over 20 years, the Commission has been aware of the insidious practices of certain advertisers, rep firms and advertising agencies of imposing written or unwritten “no urban/no Spanish” dictates. The Commission finds that discriminatory practices have no place in broadcasting and concludes that it is appropriate for the Commission to require broadcasters renewing their licenses to certify that their advertising contracts do not discriminate on the basis of race or gender and that such contracts contain nondiscrimination clauses. Broadcasters will be required to certify compliance with the new rule on their renewal applications prepared on Form 303-S. The Commission declined to dictate the specific language that advertising contracts can or should contain, given that serious First Amendment concerns could arise were the Commission to do so. 12. *Longitudinal Research on Minority and Women Ownership Trends.* Commenters argue that the Commission should conduct annual longitudinal studies of minority and female ownership. The Order agrees with these concerns, and the Commission will commence such research once it has resolved the data-gathering issues raised in the Third Further Notice accompanying the Order. The Commission agrees that longitudinal studies could help the Commission track ownership trends over time and that such studies could help scholars and other interested parties assess the impact of rule changes on minority and female ownership. It agrees that this, in turn, could help provide real-time feedback on the impact of the Commission's rules and policies on access to capital, the availability of spectrum and opportunity to minority and female-owned entities, and the ability of such entities to serve the public. It also agrees that conducting such studies annually would help it build a more robust database that could better illuminate the optimal intervals for conducting future studies. Once the Commission has collected improved information on FCC Form 323, it will conduct longitudinal studies as suggested by the commenters. 13. *Local and Regional Bank Participation in SBA Guaranteed Loan Programs.* The Commission adopts a proposal to increase Commission efforts to encourage local and regional banks to participate in SBA-guaranteed loan programs to facilitate broadcast and telecommunications-related transactions. Through its Office of Communications Business Opportunities, the Commission will work closely with the SBA to educate and encourage more local and regional banks (which historically have not been heavily involved in broadcast and telecommunications lending) to make loans through the SBA's 7(a) or 504 programs. The Commission believes that by increasing outreach to local and regional banks and to the SBA, the Commission can better assist both local banks and SBA programs to facilitate such transactions and provide potential lenders with special expertise regarding transactions. Absent such efforts, uncertainty about asset valuation could cause local and regional banks to refuse to facilitate otherwise viable transactions. Because such outcomes could frustrate Commission efforts to promote ownership and viewpoint diversity, the Commission concludes that this action is appropriate. 14. *Duopoly Priority for Companies That Finance or Incubate an Eligible Entity.* The Order adopts a proposal to give any entity that is financing or incubating an “eligible entity” (as that term is defined in the Order) priority if it files for a duopoly simultaneously with non-eligible entities in a market that can only support one additional duopoly. Commenters argue that “when the local television ownership rules permit only one additional duopoly in a market, a ‘race to the courthouse,’ could determine which duopoly application is processed first.” The Order agrees that one way to cure this problem is to create an incentive plan under which a company financing or incubating an eligible entity would be guaranteed a priority if it files for a duopoly simultaneously with other entities in a market that can support only one additional duopoly. This vested priority in a duopolization queue would reward the large broadcaster that had incubated or financed an eligible entity if it filed simultaneously for a duopoly with a non-incubating entity. Moreover, such a priority in the duopolization queue could have substantial value and therefore provide the added benefit of an incentive for eligible entity financing. The Commission agrees that in this situation, a general statement of policy that grants priority to entities funding or incubating eligible entities would promote ownership diversity. 15. *Extension of Divestiture Deadlines in Certain Mergers.* The Order adopts a proposal to consider requests to extend divestiture deadlines in mergers in which applicants have actively solicited bids for divested properties from eligible entities. The Commission has encouraged companies undertaking major transactions to assist small businesses, including those owned by minority and female entrepreneurs interested in purchasing divested properties. But such efforts may take time, and such entities may need additional time to secure funding to complete potential transactions. Consequently, while rigidly enforced divestiture deadlines might be intended to increase minority ownership and viewpoint diversity, they could sometimes have the perverse effect of disadvantaging potential minority owners. Because divestiture deadlines are intended to prevent undue concentration of media ownership, requests to extend these deadlines in order to facilitate acquisition of divested properties by small businesses could promote both diversity in media ownership and the objective that divestiture seeks to achieve. Consequently, the Commission will adopt a policy of considering requests to extend divestiture deadlines when applicants have actively solicited bids for divested properties from eligible entities. The Order also adopts a proposal requiring that entities availing themselves of an extension must either sell a given property to an eligible entity within the extended deadline or have the property placed in an irrevocable trust for sale by an independent trustee to an eligible entity. This action is designed to prevent potential abuse of the extensions and ensure that the extensions will actually result in sales to eligible entities. 16. *Transfer of Grandfathered Radio Station Combinations to Non-Eligible Entities.* The Order adopts a proposal that the Commission permit the assignment or transfer of grandfathered radio station combinations intact to any buyer, not just an eligible entity as currently permitted, provided that such a buyer files an application to assign the excess stations to an eligible entity, or to an irrevocable divestiture trust for purposes of ultimate assignment to an eligible entity, within 12 months after consummation of the purchase of the grandfathered cluster. The Commission agrees with commenting parties that this proposal will promote small business investment in broadcasting by providing additional time and flexibility to raise the capital necessary to purchase the excess stations. In order to ensure that this proposal will not undermine the Commission's local radio ownership rule, the rules will require non-eligible entities seeking to acquire a grandfathered radio station group to file the divestiture trust agreement with its initial application to allow the Commission to evaluate the proposed trust at the outset. 17. *“Access to Capital” Conference.* The Order also adopts a proposal that the Commission convene an access-to-capital conference. This conference will focus on the investment banking and private equity communities, and the opportunities for small businesses, new entrants, and designated entities to acquire access to financing and thereby facilitate entry to ownership in the communications sector. Moreover, the Commission will seek to facilitate the creation of educational conferences whenever a significant ownership transaction is proposed to the Commission. 18. *Guidebook on Diversity.* The Commission adopts a proposal to create a guidebook on diversity that will focus on what companies can do to promote diversity in ownership and contracting in order to provide the public with more information and guidance on this subject. C. Other Proposals 19. *Transfers of Grandfathered Station Combinations to SDBs.* The Commission declines to adopt a proposal to permit the licensee of a grandfathered station combination to sell the cluster intact to a socially disadvantaged business (“SDB”). In the 2002 Biennial Review Order, the Commission permitted the sale of grandfathered station combinations to “eligible entities,” which were defined as entities that would qualify as a small business consistent with SBA standards for its industry grouping. The Order adopts the same definition for the class of entities that benefit initially from the actions taken in the Order. Should the Commission adopt a definition of SDB at the conclusion of the proceeding initiated by the Third Further Notice accompanying the Order, by operation of the existing rule such SDBs would be permitted to acquire grandfathered combinations. 20. *Structural Rule Waiver for Selling a Station to an SDB; Staged Implementation of Deregulation.* The Commission declines to adopt a “structural” waiver of its broadcast ownership rules, under which an applicant selling a station to an SDB would be permitted to complete a transaction that otherwise would be barred by an ownership rule. This proposal is linked to another, which urges the Commission, should it decide to relax its broadcast ownership rules, to implement such deregulation in stages, measuring its impact and adopting “mid-course corrections” as needed. A commenter suggests that the confluence of these two proposals would have the effect of permitting an applicant selling a station to an SDB to have its transaction evaluated under the more liberal ownership rules that would take effect later in the staged deregulation process. The Commission states that the short-term benefit of the waiver proposal—an immediate increase in the number of stations owned by SDBs—would likely be offset by the public interest harms resulting from the approval of station combinations that exceed the ownership rules. The Commission states that it has no current plans to implement the type of deregulation envisioned by proponents of a staged approach and finds the proposal to be premature. 21. *Structural Rule Waivers for Creating Incubator Programs* . The Commission declines to adopt a proposal that it waive its broadcast ownership rules to allow an applicant to acquire stations in a market beyond the permissible limit if it establishes and implements an “incubator” program designed to promote ownership by disadvantaged businesses. While it appreciates the value that incentives-based programs such as this can have, the Commission is concerned that companies participating in such a program will expend only the barest minimum in financial and other support required to qualify for the waiver. Moreover, the Commission is concerned that, by allowing the incubating party to acquire stations in excess of local ownership caps, the proposal could create a significant potential for undermining its broadcast ownership restrictions. 22. *Opening FM Spectrum for New Entrants* . The Commission declines to take three steps to open FM spectrum for new entrants proposed by a commenter. First, it does not relax the current limit on the filing of contingent applications set forth in § 73.3517(e) of the rules, which provides that the Commission will accept up to four contingent applications filed by FM licensees or permittees for minor modification of facilities. Second, it does not repeal the third adjacent channel requirements found in § 73.215(a) of the rules. Finally, it does not relax its FM service and allotment rules and policies:

(1)By replacing the community of license coverage requirement for commercial FM stations, set forth in § 73.315(a) of the rules, with the less stringent coverage requirement for noncommercial FM stations, set forth in § 73.515 of the rules; or

(2)by authorizing stations to change their community of license to any community located within the same market, as defined by § 73.3555(a) of the rules. 23. In amending § 73.3517 of the rules to permit the filing of contingent applications, the Commission concludes that a limit of four struck the proper balance between the desire of broadcasters for additional flexibility in proposing coordinated changes and the limited staff resources that are available to review the substantially more complex facilities change applications that the revised rule permits. Commenters have not presented evidence sufficient to persuade the Commission to upset this balance. With respect to the second proposed step, the Commission notes that the third adjacent channel requirements are statutory. The Commission issued a report to Congress in 2004, based on the FCC-commissioned Mitre Study, advising that, because LPFM stations do not pose a significant risk of causing interference to existing full service FM stations or FM translator and FM booster stations, Congress should eliminate the third adjacent channel protection requirement. The Commission states that it will continue to recommend such legislation. Finally, the Commission concludes that relaxing community of license coverage requirements for commercial FM stations and increasing the ability of radio stations to change their communities of license to any community within the same market will undermine its broadcast regulatory policy of enhancing localism. Such actions would result in the licensing of stations that technically cannot serve their communities of license, a result antithetical to the concept of localism. Furthermore, the Commission notes that it recently declined to abandon its policy against removing the sole local transmission service at a community in order to allow it to become the first local transmission service at another community. It also notes, however, that a commenter revised this last proposal in accordance with a recent recommendation of the federal advisory committee on diversity, and it seeks comment on this revised proposal in the Third Further Notice that accompanies the Order. 24. *Advocacy of Tax Deferral Legislation; Promotion of Minority Ownership in All General Media Rulemaking Proceedings* . The Commission believes it already satisfied a proposal that the Commission recommend to Congress that it reinstate the Commission's authority to adopt the former Tax Certificate Policy. That policy, originally adopted by the Commission in 1978, allowed a seller to defer capital gains taxes on the sale of a media property to a minority-controlled firm. The Commission recommended reinstatement of the necessary statutory authority in its recently adopted Section 257 Triennial Report to Congress. The Commission therefore declines to commit to further action in the Order. 25. The Commission also believes it has satisfied a proposal that the Commission consider, as part of all general media rulemaking proceedings (except for individual FM or TV allotment proceedings), how the proposed rules would impact minority ownership. The Commission's Office of Communications Business Opportunities currently provides outreach services to assist small businesses and new entrants into the communications industry and input on how proposed rules impact minority ownership. The Commission therefore declines to commit to further action in the Order. 26. *Extension of the Community Reinvestment Act* . The Commission declines to adopt a proposal that it work with the Treasury Department to expand application of the Community Reinvestment Act (“CRA”) credit to encourage institutions to place capital in minority-focused private equity funds. The Commission notes that the CRA already encourages debt financing to small broadcasters and, to the extent that the proposal advocates adding a race-based dimension to the CRA, it concludes that judicial precedent constrains the Commission from enacting it. 27. *Establish a “Fund of Funds.”* The Commission declines to adopt at this time a proposal that it initiate discussions with the major pension funds to encourage the establishment of a special fund to place capital with minority-focused private equity funds. The Commission concludes that it lacks statutory authority to hold such discussions and, while it recognizes that eligible entities, as defined in the Order, have difficulty accessing capital, it has taken action that will help mitigate that difficulty and does not believe that the additional measures proposed are appropriate Commission functions. 28. *Relax Ownership Restrictions* . The Commission declines to adopt a proposal that it relax restrictions on foreign ownership to permit non-controlling foreign investment where such investment would help eliminate a barrier to access to capital for domestic, minority-owned broadcasters. Commenters do not explain why the Commission's concerns about foreign ownership of broadcast interests generally would not apply in this context. At a minimum, the Commission would be required to undertake a significant rulemaking proceeding to examine this issue in greater depth. The Commission is not convinced, on the basis of the record before it, that taking the extraordinary step of relaxing its foreign ownership rules would promote diversification among broadcast licensees, including women and minorities. 29. *Permit AM Stations To Use FM Translators* . The Commission concludes that it is not necessary to take action in the Order to permit AM stations to rebroadcast their signals on FM translator stations. It notes that it already has released a Notice of Proposed Rulemaking to seek comment on such a rule change and expects to issue an order resolving that proceeding soon. 30. *Repeal Radio Subcaps* . The Commission takes no action in the Order on a proposal that it repeal the subcaps on ownership of same-service (AM or FM) stations contained in the local radio ownership rule. It notes that it retains the subcaps as a component of the local radio ownership rule in its Report and Order in the 2006 Quadrennial Review proceeding. Report and Order *Final Paperwork Reduction Act of 1995 Analysis:* 31. This Order contains modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. It will be submitted to the Office of Management and Budget

(OMB)for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the modified information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will publish a separate **Federal Register** Notice seeking those comments. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” Final Regulatory Flexibility Analysis 32. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis

(IRFA)was incorporated in the Notice of Proposed Rulemaking

(NPRM)in MB Docket No. 02-277. The Commission sought written public comment on the proposals in the NPRM including comment on the IRFA. The Commission also prepared a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) and a Second Supplemental Initial Regulatory Flexibility Analysis (Second Supplemental IRFA) of the possible significant economic impact on small entities of the proposals in the *Further Notice of Proposed Rulemaking (Further Notice)* and the *Second Further Notice of Proposed Rulemaking (Second Further Notice)* , respectively. The Commission sought written public comment on the *Further Notice* , including comment on the Supplemental IRFA, and written public comment on the *Second Further Notice* , including comment on the Second Supplemental IRFA. This present Final Regulatory Flexibility Analysis

(FRFA)conforms to the RFA. A. Need for, and Objectives of, the Report and Order and Order on Reconsideration (Order) 33. The Order takes several steps to increase participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses, which historically have not been well-represented in the broadcasting industry. The *Order* sets forth the Commission's objectives, defines the entities that will benefit initially from the Commission's actions, and adopts a number of measures modifying certain Commission rules and policies to encourage ownership diversity and new entry in broadcasting. B. Legal Basis 34. This Order is adopted pursuant to sections 1, 2(a), 4(i), 257, 303, and 307-310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 257, 303, and 307-310. C. Summary of Significant Issues Raised by Public Comments in Response to the IRFA and the Supplemental IRFA 35. The Commission received no comments in direct response to the IRFA, the Supplemental IRFA, or the Second Supplemental IRFA. However, the Commission received comments that discuss issues of interest to small entities. These comments were taken into account during the Commission's decision-making process to adopt certain rule modifications to promote broadcast ownership among new entrants and small businesses, including minority- and women-owned businesses. These rule modifications are summarized in the section of this FRFA discussing the steps taken to minimize a significant impact on small entities, and the significant alternatives considered. D. Description and Estimate of the Number of Small Entities To Which the Rules Will Apply 36. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental entity” under section 3 of the Small Business Act. In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which:

(1)Is independently owned and operated;

(2)is not dominant in its field of operation; and

(3)satisfies any additional criteria established by the SBA. 37. Television Broadcasting. In this context, the application of the statutory definition to television stations is of concern. The Small Business Administration defines a television broadcasting station that has no more than $13 million in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of the BIA Financial Network, Inc. Media Access Pro Television Database as of December 7, 2007, about 825 (66 percent) of the 1,250 commercial television stations in the United States have revenues of $13 million or less. However, in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the ownership rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 38. An element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time and in this context to define or quantify the criteria that would establish whether a specific television station is dominant in its market of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any television stations from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. It is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 39. Radio Broadcasting. The Small Business Administration defines a radio broadcasting entity that has $6.5 million or less in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” According to Commission staff review of the BIA Financial Network, Inc. Media Access Radio Analyzer Database as of December 7, 2007, about 10,500 (95 percent) of 11,050 commercial radio stations in the United States have revenues of $6.5 million or less. We note, however, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the ownership rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 40. In this context, the application of the statutory definition to radio stations is of concern. An element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time and in this context to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any radio station from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 41. Class A TV, LPTV, and TV translator stations. The rules and policies adopted herein may also apply to licensees of Class A TV stations, low power television (“LPTV”) stations, and TV translator stations, as well as to potential licensees in these television services. The same SBA definition that applies to television broadcast licensees would apply to these stations. The SBA defines a television broadcast station as a small business if such station has no more than $13.0 million in annual receipts. Currently, there are approximately 567 licensed Class A stations, 2,227 licensed LPTV stations, and 4,518 licensed TV translators. Given the nature of these services, we will presume that all of these licensees qualify as small entities under the SBA definition. We note, however, that under the SBA's definition, revenue of affiliates that are not LPTV stations should be aggregated with the LPTV station revenues in determining whether a concern is small. Our estimate may thus overstate the number of small entities, since the revenue figure on which it is based does not include or aggregate revenues from non-LPTV affiliated companies. We do not have data on revenues of TV translator or TV booster stations, but virtually all of these entities are also likely to have revenues of less than $13.0 million and thus may be categorized as small, except to the extent that revenues of affiliated non-translator or booster entities should be considered. 42. FM Translator Stations and Low Power FM Stations. The proposed rules and policies could affect licensees of FM translator and booster stations and low power FM

(LPFM)stations, as well as potential licensees in these radio services. The same SBA definition that applies to radio broadcast licensees would apply to these stations. The SBA defines a radio broadcast station as a small business if such station has no more than $6.5 million in annual receipts. Currently, there are approximately 5,540 licensed FM translator stations and 262 FM booster stations and 820 licensed LPFM stations. Given the nature of these services, we will presume that all of these licensees qualify as small entities under the SBA definition. 43. International Broadcast Stations. Commission records show that there are approximately 24 international high frequency broadcast station authorizations. We do not request nor collect annual revenue information, and are unable to estimate the number of international high frequency broadcast stations that would constitute small businesses under the SBA definition. 44. Daily Newspapers. The SBA has developed a small business size standard for the census category of Newspaper Publishers; that size standard is 500 or fewer employees. Census Bureau data for 2002 show that there were 5,159 firms in this category that operated for the entire year. Of this total, 5,065 firms had employment of 499 or fewer employees, and an additional 42 firms had employment of 500 to 999 employees. Therefore, we estimate that the majority of Newspaper Publishers are small entities that might be affected by our action. E. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 45. Licensees engaged in the sale of a commercially operated AM, FM, TV, Class A TV, or international broadcast station will be required to certify on Form 314 or 315 that they did not discriminate on the basis of race, color, religion, national origin, or sex in the sale of their station. Broadcasters that are renewing their licenses will have to certify on Form 303-S that their advertising sales contracts do not contain discriminatory clauses. 46. The Commission revised its rules to afford eligible entities that acquire an expiring construction permit additional time to build out the facility (either the time remaining on the original construction permit or 18 months, whichever is greater). To obtain this benefit, eligible entities will have to demonstrate that they meet the eligibility criteria. In addition, the Commission relaxed its equity/debt plus attribution standard for interest holders in eligible entities in order to encourage investment in smaller companies. For both these rule changes, there will be revisions to application forms or the forms' instructions. F. Steps Taken To Minimize Significant Impact on Small Entities and Significant Alternatives Considered 47. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others):

(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;

(3)the use of performance, rather than design, standards; and

(4)an exemption from coverage of the rule, or any part thereof, for small entities. 48. The Commission's intent in adopting the rule modifications in the Order was to expand broadcast ownership opportunities for new entrants and small businesses, including minority- and women-owned businesses. Therefore, it is anticipated that the adopted rule changes will benefit small businesses, not burden them. Although the Commission adopted numerous proposals to benefit small businesses, it declined to adopt certain other proposals after considering the various ramifications involved. The Order describes in detail the Commission's reasoning for each proposal adopted or declined. 49. To promote and expand media ownership diversity, the Commission:

(1)Changed the construction permit deadlines to allow eligible entities that acquire expiring construction permits additional time to build out the facility;

(2)revised the equity/debt plus attribution standard to facilitate investment in eligible entities;

(3)modified the distress sale policy to allow certain licensees—those whose license has been designated for a revocation hearing or whose renewal application has been designated for a hearing on basic qualifications issues—to sell the station to an eligible entity prior to the commencement of the hearing;

(4)adopted an Equal Transactional Opportunity rule that bars race or gender discrimination in broadcast transactions;

(5)adopted a “zero-tolerance” policy for ownership fraud and agreed to “fast-track” ownership-fraud claims;

(6)required broadcasters renewing their licenses to certify that their advertising sales contracts do not discriminate on the basis of race or gender;

(7)resolved to conduct annual longitudinal studies of minority and female ownership after the Commission improves its data gathering process;

(8)encouraged local and regional banks to participate in SBA-guaranteed loan programs in order to facilitate broadcast and telecommunications-related transactions;

(9)adopted modifications to give priority to any entity financing or incubating an eligible entity in certain duopoly situations;

(10)permitted the consideration of requests to extend divestiture deadlines in mergers in which applicants have actively solicited bids for divested properties from eligible entities;

(11)revised the exception to the prohibition on the assignment or transfer of grandfathered radio station combinations;

(12)agreed to convene an access-to-capital conference; and

(13)decided to create a guidebook on increasing diversity in the media and telecom industries. Congressional Review Act 50. The Commission will send a copy of this Order, including this FRFA, in a report to Congress and the Government Accountability Office, pursuant to the Congressional Review Act. In addition, the Commission will send a copy of this Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this Order and FRFA (or summaries thereof) will also be published in the **Federal Register** . Ordering Clauses 51. Accordingly, *it is ordered* , that pursuant to the authority contained in sections 1, 2(a), 4(i), 257, 303(r), and 307-310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 257, 303(r), and 307-310, this *Report and Order is adopted* . 52. *It is further ordered* , that pursuant to the authority contained in sections 1, 2(a), 4(i), 257, 303(r), and 307-310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 257, 303(r), and 307-310, the Commission's rules *are hereby amended* as set forth in Appendix A. 53. *It is further ordered* , that the rule amendments adopted herein *will become effective* July 15, 2008. Changes to FCC Forms required as the result of the rule amendments adopted herein *will become effective* 30 days after the Commission publishes a notice in the **Federal Register** announcing approval by the Office of Management and Budget of the forms. 54. *It is further ordered* , that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, *shall send* a copy of this *Report and Order* , including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. 55. *It is further ordered* , that the Commission *shall send* a copy of this Report and Order and Third Further Notice of Proposed Rulemaking in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). 56. *It is further ordered* , that pursuant to the authority contained in sections 1, 2(a), 4(i, j), 257, 303(r), 307-10, and 614-15 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i, j), 257, 303(r), 307-10, 534-35, this *Third Further Notice of Proposed Rule Making is adopted* . 57. *It is further ordered* , that pursuant to the authority contained in sections 1, 2(a), 4(i, j), 257, 303(r), 307-10, 336, and 614-15 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i, j), 257, 303(r), 307-310, 336, 534-35, *notice is hereby given* of the proposals described in this *Third Further Notice of Proposed Rule Making* . 58. *It is further ordered* , that the Petition for Rulemaking of Entravision Holdings, LLC, RM-9567, *is granted in part* . 59. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, *shall send* a copy of this *Third Further Notice of Proposed Rule Making* , including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 73 Radio, Television. Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336, and 339. 2. Section 73.2090 is added to read as follows: § 73.2090 Ban on discrimination in broadcast transactions. No qualified person or entity shall be discriminated against on the basis of race, color, religion, national origin or sex in the sale of commercially operated AM, FM, TV, Class A TV or international broadcast stations (as defined in this part). 3. Section 73.3555 is amended by revising paragraph i. to “Note 2”, § 73.3555 to read as follows: § 73.3555 Multiple ownership. i. Notwithstanding paragraphs e. and f. of this note, the holder of an equity or debt interest or interests in a broadcast licensee, cable television system, daily newspaper, or other media outlet subject to the broadcast multiple ownership or cross-ownership rules (“interest holder”) shall have that interest attributed if: 1. Where the entity in which the interest is held is not an eligible entity, the equity (including all stockholdings, whether voting or nonvoting, common or preferred) and debt interest or interests, in the aggregate, exceed 33 percent of the total asset value, defined as the aggregate of all equity plus all debt, of that media outlet, or where the entity in which the interest is held is an eligible entity, the combined equity and debt of the interest holder in the eligible entity is less than 50 percent or the total debt of the interest holder in the eligible entity does not exceed 80 percent of the asset value of the station being acquired by the eligible entity and the interest holder does not hold any equity interest, option, or promise to acquire an equity interest in the eligible entity or any related entity; and 2. i. The interest holder also holds an interest in a broadcast licensee, cable television system, newspaper, or other media outlet operating in the same market that is subject to the broadcast multiple ownership or cross-ownership rules and is attributable under paragraphs of this note other than this paragraph i.; or ii. The interest holder supplies over 15 percent of the total weekly broadcast programming hours of the station in which the interest is held. For purposes of applying this paragraph, the term, “market,” will be defined as it is defined under the specific multiple or cross-ownership rule that is being applied, except that for television stations, the term “market,” will be defined by reference to the definition contained in the local television multiple ownership rule contained in paragraph

(b)of this section. iii. For purposes of paragraph i. 1. of this note, an “eligible entity” shall include any entity that qualifies as a small business under the Small Business Administration's size standards for its industry grouping, as set forth in 13 CFR 121 through 201, at the time the transaction is approved by the FCC, and holds. A. 30 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will own the media outlet; or B. 15 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will own the media outlet, provided that no other person or entity owns or controls more than 25 percent of the outstanding stock or partnership interests; or C. More than 50 percent of the voting power of the corporation that will own the media outlet if such corporation is a publicly traded company. 4. Section 73.3598 is amended by revising paragraph

(a)to read as follows: § 73.3598 Period of construction.

(a)Except as provided in the last two sentences of this paragraph, each original construction permit for the construction of a new TV, AM, FM or International Broadcast; low power TV; TV translator; TV booster; FM translator; or FM booster station, or to make changes in such existing stations, shall specify a period of three years from the date of issuance of the original construction permit within which construction shall be completed and application for license filed. Except as provided in the last two sentences of this paragraph, each original construction permit for the construction of a new LPFM station shall specify a period of eighteen months from the date of issuance of the construction permit within which construction shall be completed and application for license filed. A LPFM permittee unable to complete construction within the time frame specified in the original construction permit may apply for an eighteen month extension upon a showing of good cause. The LPFM permittee must file for an extension on or before the expiration of the construction deadline specified in the original construction permit. An eligible entity that acquires an issued and outstanding construction permit for a station in any of the services listed in this paragraph shall have the time remaining on the construction permit or eighteen months from the consummation of the assignment or transfer of control, whichever is longer, within which to complete construction and file an application for license. For purposes of the preceding sentence, an “eligible entity” shall include any entity that qualifies as a small business under the Small Business Administration's size standards for its industry grouping, as set forth in 13 CFR 121 through 201, at the time the transaction is approved by the FCC, and holds

(1)30 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will hold the construction permit; or

(2)15 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will hold the construction permit, provided that no other person or entity owns or controls more than 25 percent of the outstanding stock or partnership interests; or

(3)More than 50 percent of the voting power of the corporation that will hold the construction permit if such corporation is a publicly traded company. 5. Section 73.5008 is amended by revising paragraph

(c)to read as follows: § 73.5008 Definitions applicable for designated entity provisions.

(c)An attributable interest in a winning bidder or in a medium of mass communications shall be determined in accordance with § 73.3555 and Note 2. In addition, the attributable mass media interests, if any, held by an individual or entity with an equity and/or debt interest(s) in a winning bidder shall be attributed to that winning bidder for purposes of determining its eligibility for the new entrant bidding credit, if the equity (including all stockholdings, whether voting or nonvoting, common or preferred) and debt interest or interests, in the aggregate, exceed thirty-three

(33)percent of the total asset value (defined as the aggregate of all equity plus all debt) of the winning bidder, or where the winning bidder is an eligible entity, the combined equity and debt of the interest holder in the winning bidder is less than 50 percent or the total debt of the interest holder in the winning bidder does not exceed 80 percent of the asset value of the winning bidder and the interest holder does not hold any equity interest, option, or promise to acquire an equity interest in the winning bidder or any related entity. For purposes of the preceding sentence, an “eligible entity” shall include any entity that qualifies as a small business under the Small Business Administration's size standards for its industry grouping, as set forth in 13 CFR 121 through 201, at the time the transaction is approved by the FCC, and holds

(1)30 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will own the media outlet; or

(2)15 percent or more of the stock or partnership interests and more than 50 percent of the voting power of the corporation or partnership that will own the media outlet, provided that no other person or entity owns or controls more than 25 percent of the outstanding stock or partnership interests; or

(3)More than 50 percent of the voting power of the corporation that will own the media outlet if such corporation is a publicly traded company. [FR Doc. E8-11039 Filed 5-15-08; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 565 [Docket No. NHTSA 2008-0022] RIN 2127-AJ99 Vehicle Identification Number Requirements; Correction AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Final rule; correction. SUMMARY: NHTSA published in the **Federal Register** of April 30, 2008, a final rule making certain changes in the 17-character vehicle identification number

(VIN)system so that the system will remain viable for at least another 30 years. The regulatory text of the final rule contained several typographical errors, which this document corrects. In addition, this document makes clear that all motor vehicles identified by their manufacturer as model year

(MY)2009 or earlier vehicles must comply with the current Part 565 VIN requirements (which are set forth in subpart C of Part 565 of the final rule). DATES: *Effective Date:* May 16, 2008. FOR FURTHER INFORMATION CONTACT: *For non-legal issues* , you may contact Mr. Kenneth O. Hardie, Office of Crash Avoidance Standards (NVS-120), NHTSA, 1200 New Jersey Avenue, SE., Washington, DC 20590 (Telephone: 202-366-6987) (FAX: 202-366-7002). *For legal issues* , you may contact Ms. Deirdre Fujita, Office of the Chief Counsel, NHTSA, 1200 New Jersey Avenue, SE., Washington, DC 20590 (Telephone: 202-366-2992) (FAX: 202-366-3820). SUPPLEMENTARY INFORMATION: NHTSA published a final rule in the **Federal Register** of April 30, 2008, (73 FR 23367; NHTSA Docket 2008-0022) that made certain changes in the 17-character vehicle identification number

(VIN)system so that there will be a sufficient number of unique manufacturer identifiers and VINs to use for at least another 30 years. 1 The regulatory text of the final rule contained several typographical errors which this document corrects. In addition, this document makes clear that all motor vehicles identified by their manufacturer as model year

(MY)2009 or earlier vehicles must comply with the current Part 565 VIN requirements (which are set forth in subpart C of Part 565 of the final rule). 2 1 The bulk of the changes in 49 CFR Part 565 applied to passenger cars and multipurpose passenger vehicles and trucks with a gross vehicle weight rating of 4536 kilograms (10,000 pounds) or less. There were relatively few changes to the regulation that impact the manufacturers of other vehicles. However, NHTSA urges all manufacturers to read the new regulation carefully to determine the specific changes that apply to them, such as the new requirement that the vehicle make now be communicated in and decipherable from the second section of the VIN as opposed to the first section of the VIN as previously required. 2 In the **Federal Register** document at page 23376, middle column under the heading “Agency Analysis and Response” (which related to “14. Effective Date of the Rule”) there is a discussion relating to the effective date that focuses on the letters “A” and “B” in the 10th VIN position. The entire thrust of that discussion was intended to make clear that the application of the new regulation begins with the 2010 model year. However, while the agency intended that the application of the old regulation was to end with the completion of the 2009 model year, this application was not clearly stated. This correction addresses the lack of clarity in establishing the end of the old regulation. Correction of Publication In rule FR Doc. 08-1197 published on April 30, 2008, (73 FR 23367), make the following corrections. 1. On page 23379, in the second column, § 565.2 is correctly revised to read as follows: § 565.2 Application. (a)(1) Except as provided in paragraph (a)(2) of this section, Subpart B of this part 565 applies to passenger cars, multipurpose passenger vehicles, trucks, buses, trailers (including trailer kits), incomplete vehicles, low speed vehicles, and motorcycles manufactured on or after October 27, 2008 whose VINs have a letter “A” or “B” in the 10th position, and to passenger cars, multipurpose passenger vehicles, trucks, buses, trailers (including trailer kits), incomplete vehicles, low speed vehicles, and motorcycles manufactured on or after April 30, 2009. Vehicles imported into the United States under 49 CFR 591.5(f), other than by the corporation responsible for the assembly of that vehicle or a subsidiary of such a corporation, are excluded from requirements of § 565.13(b), § 565.13(c), § 565.13(g), § 565.13(h), § 565.14 and § 565.15.

(2)All motor vehicles identified as model year 2009 or earlier vehicles by their manufacturer must comply with Subpart C of this part 565.

(b)Subpart B of this part 565 applies to vehicles manufactured on or after April 30, 2008 and before April 30, 2009, whose vehicle identification number

(VIN)does not have a letter “A” or “B” in the 10th position of the VIN and that are not identified as model year 2009 or earlier vehicles by their manufacturer. § 565.11 [Corrected] 2. On page 23379, in the second column, in § 565.11, “572” in the first sentence of the paragraph is corrected to read “565,” and the phrase “that are not identified by their manufacturer as model year 2009 or earlier vehicles” is added to the end of the second sentence. In the third column of the same page, in § 565.11, “591.14(f)” is corrected to read “591.5(f).” § 565.21 [Corrected] 3. On page 23383, in the first column, in § 565.21, “572” in the first sentence of the paragraph is corrected to read “565.” In the third sentence, “591.24(f)” is corrected to read “591.5(f).” Issued: May 8, 2008. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E8-10831 Filed 5-15-08; 8:45 am] BILLING CODE 4910-59-P 73 96 Friday, May 16, 2008 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. APHIS-2007-0144] RIN 0579-AC76 Importation of Baby Squash and Baby Courgettes From Zambia AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule. SUMMARY: We are proposing to amend the fruits and vegetables regulations to allow the importation into the continental United States of baby squash and baby courgettes from Zambia. As a condition of entry, both commodities would have to be produced in accordance with a systems approach that would include requirements for pest exclusion at the production site, fruit fly trapping inside and outside the production site, and pest-excluding packinghouse procedures. Both commodities would also be required to be accompanied by a phytosanitary certificate with an additional declaration stating that the baby squash or baby courgettes have been produced in accordance with the proposed requirements. This action would allow for the importation of baby squash and baby courgettes from Zambia into the United States while continuing to provide protection against the introduction of quarantine pests. DATES: We will consider all comments that we receive on or before July 15, 2008. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0144* to submit or view comments and to view supporting and related materials available electronically. • *Postal Mail/Commercial Delivery:* Please send two copies of your comment to Docket No. APHIS-2007-0144, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0144. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence, Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;

(301)734-8758. SUPPLEMENTARY INFORMATION: Background The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56 through 319.56-47, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States. The national plant protection organization

(NPPO)of Zambia has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow baby squash and baby courgettes from Zambia to be imported into the United States. As part of our evaluation of Zambia's request, we prepared a pest risk assessment

(PRA)and a risk management document. Copies of the PRA and the risk management document may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov). The PRA, titled “Importation of Baby Squash, *Cucurbita maxima* Duchesne, and Baby Courgettes, *C. pepo* L., from Zambia into the Continental United States” (November 2007), evaluates the risks associated with the importation of baby squash and baby courgettes into the continental United States (the lower 48 States and Alaska) from Zambia. The terms baby squash and baby courgettes refer to immature squash and courgettes for consumption that are 20 to 25 millimeters (0.79 to 0.98 inches) in diameter and 90 to 100 millimeters (3.54 to 3.94 inches) long. The PRA and supporting documents identified 10 pests of quarantine significance present in Zambia that could be introduced into the United States through the importation of baby squash or baby courgettes. These include three moths, *Diaphania indica, Helicoverpa armigera* , and *Spodoptera littoralis* , and a scale, *Aulacaspis tubercularis* . The remaining six quarantine pests are fruit flies: *Dacus bivitattus, D. ciliatus, D. frontalis, D. lounsburyii, D. punctatifrons* , and *D. vertebratus* . APHIS has determined that measures beyond standard port-of-entry inspection are required to mitigate the risks posed by these plant pests. Therefore, we are proposing to allow the importation of baby squash and baby courgettes from Zambia into the continental United States only if they are produced in accordance with a systems approach. The systems approach would require the baby squash and baby courgettes to be grown in approved greenhouses designed to exclude all 10 quarantine pests, would require trapping inside and outside the greenhouse for the 6 *Dacus* spp. fruit flies, and would require packinghouse procedures designed to exclude all 10 quarantine pests. Only commercial consignments of baby squash and baby courgettes would be allowed to be imported from Zambia. Consignments of baby squash or baby courgettes from Zambia would also be required to be accompanied by a phytosanitary certificate with an additional declaration stating that the baby squash or baby courgettes had been produced in accordance with the proposed requirements. The mitigation measures in the proposed systems approach are discussed in greater detail below. Approved Greenhouses Baby squash and baby courgettes would have to be grown in Zambia in insect-proof, pest-free greenhouses approved jointly by the Zambian NPPO and APHIS. The greenhouses would have to be equipped with double self-closing doors, to prevent inadvertent introduction of pests into the greenhouses. In addition, any vents or openings in the greenhouses (other than the double self-closing doors) would have to be covered with 1.6 mm screening in order to prevent the entry of pests into the greenhouse. The 1.6 mm screening size is adequate to exclude all 10 quarantine pests of concern, as all of these pests are relatively large. We would require the greenhouses to be inspected periodically by the Zambian NPPO or its approved designee to ensure that sanitary procedures are employed to exclude plant pests and diseases and to verify that the screening is intact. (An approved designee is an entity with which the NPPO creates a formal agreement that allows that entity to certify that the appropriate procedures have been followed. The approved designee can be a contracted entity, a coalition of growers, or the growers themselves.) The greenhouses would also have to be inspected monthly for the 10 quarantine pests of concern by the Zambian NPPO or its approved designee, beginning 2 months before harvest and continuing for the duration of the harvest. APHIS would have to be allowed to monitor or inspect the greenhouses during this period as well. If, during these inspections, any of the quarantine pests was found inside the greenhouse, the Zambian NPPO would immediately prohibit that greenhouse from exporting baby squash or baby courgettes to the United States and notify APHIS of the action. The prohibition would remain in effect until the Zambian NPPO and APHIS agree that the risk has been mitigated. Trapping for Dacus spp. Fruit Flies Trapping for *Dacus bivitattus, D. ciliatus, D. frontalis, D. lounsburyii, D. punctatifrons* , and *D. vertebratus* (referred to below, collectively, as *Dacus* spp. fruit flies) would be required both inside and outside the greenhouse. Trapping would have to be conducted beginning 2 months before harvest and continue for the duration of the harvest. Inside the greenhouses, approved fruit fly traps with an approved protein bait would have to be placed inside the greenhouses at a density of four traps per hectare, with a minimum of at least two traps per greenhouse. The traps would have to be serviced at least once every 7 days. If a *Dacus* spp. fruit fly was found in a trap inside the greenhouse, the Zambian NPPO would immediately prohibit that greenhouse from exporting baby squash or baby courgettes to the United States and notify APHIS of the action. The prohibition would remain in effect until the Zambian NPPO and APHIS agree that the risk has been mitigated. Outside the greenhouse, approved fruit fly traps with an approved protein bait would have to be placed inside a buffer area 500 meters wide around the greenhouse at a density of 1 trap per 10 hectares, with a total of at least 10 traps. At least one of these traps would have to be placed near the greenhouse. These traps would have to be serviced at least once every 7 days. In order to reduce the pest pressure of *Dacus* spp. fruit flies outside the greenhouse, no shade trees would be permitted within 10 meters of the entry door of the greenhouse, and no fruit fly host plants would be permitted within 50 meters of the entry door of the greenhouse. In addition, while trapping is being conducted, no fruit fly host material (such as fruit) would be allowed to be brought into the greenhouse or to be discarded within 50 meters of the entry door of the greenhouse. Ground applications of an approved protein bait spray for the *Dacus* spp. fruit flies would have to be used on all shade trees and host plants within 200 meters surrounding the greenhouse every 6 to 10 days starting at least 30 days before and during harvest. *Dacus* spp. fruit fly prevalence levels lower than 0.7 flies per trap per week (F/T/W) would have to be maintained outside the greenhouse for the duration of the trapping. If the F/T/W was 0.7 or greater outside the greenhouse, the Zambian NPPO would immediately prohibit that greenhouse from exporting baby squash or baby courgettes to the United States and notify APHIS of the action. The prohibition would remain in effect until the Zambian NPPO and APHIS agree that the risk has been mitigated. To ensure that the trapping is being properly conducted, the Zambian NPPO or its approved designee would have to maintain records of trap placement, trap servicing, and any *Dacus* spp. captures. The Zambian NPPO would also have to maintain an APHIS-approved quality control program to audit the trapping program. APHIS would have to be given access to review 1 year's worth of trapping data for any approved greenhouse upon request. Packinghouse Procedures Baby squash and baby courgettes would have to be packed within 24 hours of harvest in a pest-exclusionary packinghouse. No shade trees would be permitted within 10 meters of the entry door of the packinghouse, and no fruit fly host plants would be permitted within 50 meters of the entry door of the packinghouse. In addition, during packing, no fruit fly host material other than the baby squash and baby courgettes would be allowed to be brought into the packinghouse, and no fruit fly host material would be allowed to be discarded within 50 meters of the entry door of the packinghouse. The baby squash or baby courgettes would have to be safeguarded by a pest-proof screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. The baby squash or baby courgettes would have to be packed in insect-proof cartons for shipment to the United States. These cartons would also have to be labeled with the identity of the greenhouse, to facilitate traceback if necessary. While packing the baby squash or baby courgettes for export to the United States, the packinghouse would only be allowed to accept baby squash and baby courgettes from approved greenhouses. These safeguards would have to remain intact until the arrival of the baby squash or baby courgettes in the United States. If the safeguards do not remain intact, the consignment would not be allowed to enter the United States. These safeguards would prevent baby squash and baby courgettes from being infested with plant pests in the interval between their departure from the approved greenhouses and their arrival in the United States. Commercial Consignments Only commercial consignments of baby squash and baby courgettes from Zambia would be allowed to be imported into the United States. Produce grown commercially is less likely to be infested with plant pests than noncommercial consignments. Noncommercial consignments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer. Phytosanitary Certificate and Labeling To reflect our proposed addition to the fruits and vegetables regulations of baby squash and baby courgettes from Zambia, we are proposing to add a new § 319.56-48 governing the conditions of entry of baby squash and baby courgettes from Zambia into the continental United States. To certify that the baby squash and baby courgettes have been produced in accordance with the requirements we are proposing, we would require that each consignment of baby squash or baby courgettes be accompanied by a phytosanitary certificate of inspection issued by the Zambian NPPO with an additional declaration stating that the baby squash or baby courgettes were produced in accordance with § 319.56-48. Executive Order 12866 and Regulatory Flexibility Act This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. This analysis examines potential impacts for U.S. small entities from the proposed importation of baby squash and baby courgettes (zucchini) from Zambia into the United States. The analysis is set forth in terms of squash generally. As background, we provide a brief overview of squash production and trade by the United States. This is followed with an estimate of price and welfare effects of the rule based on assumed levels of squash imports from Zambia. Finally, we describe the expected impact on small entities. U.S. Squash Production and Trade The United States is a major squash producer and importer. 1 The United States produced 430,100 metric tons

(MT)of squash valued at $229 million in 2006, while imports that year totaled 240,590 MT. Squash production occurs in many States. However, the top ten States (Georgia, Florida, California, New York, Michigan, Ohio, Texas, North Carolina, Oregon, and New Jersey) accounted for 98 percent of total cash receipts in 2006. 2 1 Squash can be classified depending on whether it is harvested as immature fruit (summer squash) or mature fruit (winter squash). Summer squash, such as zucchini (also known as courgette), pattypan, and yellow crookneck are harvested and consumed during the growing season, while the skin is still tender and the fruit relatively small. Winter squash such as butternut, hubbard, buttercup, ambercup, acorn, spaghetti squash, and pumpkin are harvested at maturity, generally the end of summer, cured to further harden the skin, and stored in a cool place for eating later. They generally require longer cooking time than summer squash. 2 USDA/National Agricultural Statistics Service (NASS), Vegetables 2006 Summary, January 2007. As shown in table 1, U.S. squash production increased from 398,800 MT in 2002 to 430,100 MT in 2006, an annual growth rate of about 1.6 percent. Similarly, consumption increased from 605,970 MT to 665,730 MT. During the same period, U.S. squash imports increased from 210,930 MT in 2002 to 240,590 MT in 2006. Mexico accounted by far for the largest share of U.S. imports (95.6 percent), followed distantly by Costa Rica (1.6 percent), and Canada (1.1 percent). Other minor suppliers include Honduras, Panama, New Zealand, Guatemala, and Nicaragua. The United States was a net importer throughout this period, with average annual imports (over 234,000 MT) dwarfing exports (less than 4,300 MT). Imports from Zambia would be small compared to an already large import base. 3 3 Reliable production data are not available for Zambia. Squash exported to the United States are to be grown in insect-proof, pest-free greenhouses at approved production sites. These sites are in the process of being constructed. The Zambian Government expects to export around 400 MT of fresh squash to the United States annually. It is not clear whether some additional amount would be produced for export to other countries. Table 1.—U.S. Squash Production, Consumption, Price, Exports and Imports, 2002-2006 Year Production

(MT)Consumption

(MT)Price per MT Exports in MT Imports in MT 2002 398,800 605,970 $882 3,770 210,930 2003 365,650 602,880 1,047 3,810 241,040 2004 401,330 637,650 992 4,090 240,410 2005 378,030 611,090 1,047 4,820 237,880 2006 430,100 665,730 1,157 4,960 240,590 5-year average (2002-2006) 394,780 624,670 1,025 4,290 234,170 Sources: USDA/NASS, Vegetables 2006 Summary, January 2007; wholesale prices are from USDA/NASS, Fresh market vegetables prices and yield data, 2002-2006; trade data are from USDA/Foreign Agricultural Service, The Global Trade Atlas: Global Trade Information Services, Inc., Country Edition, August 2007. Impact of Potential Fresh Squash Imports We estimate the impact of baby squash and baby courgettes imports from Zambia on U.S. production, consumption, and prices using a net trade welfare model. The data used were obtained from the Foreign Agricultural Service (FAS); The Global Trade Atlas: Global Trade Information Services, Inc., Country Edition, August 2007; and United Nations' Food and Agriculture Organization FAOstat data ( *http://faostat.fao.org* ). The demand and supply elasticities used are -0.66 and 0.12, respectively. 4 4 Jaime E. Malaga, Gary W. Williams, and Stephen W. Fuller, “U.S.-Mexico fresh vegetable trade: The effects of trade liberalization and economic growth,” *Agricultural Economics* , Vol. 26 (October 2001): 45-55. Our analysis is in terms of the overall squash industry of the United States. If data were available that would allow us to estimate the impact of the proposed rule only in terms of the markets for baby squash and baby courgettes, we would expect the effects to be somewhat larger than those reported here, but still insignificant. We model three levels of squash exports to the United States from Zambia:

(1)260 MT, average annual global exports of squash by Zambia (2004-2006);

(2)400 MT, the amount of squash that the Government of Zambia has projected would be exported to the United States; and

(3)1,000 MT, a quantity that is 2two-and-a-half times Zambia's projected exports to the United States. Table 2 presents the changes that we estimate would result from the proposed rule. These include annual changes in U.S. consumption, production, wholesale price, consumer welfare, producer welfare, and net welfare. The medium level of assumed squash exports to the United States of 400 MT (as projected by the Government of Zambia) would result in a decline of $0.89 per MT in the wholesale price of squash and a fall in U.S. production of 41 MT. Consumption would increase by 359 MT. Producer welfare would decline by $347,180 and consumer welfare would increase by $558,240, yielding an annual net benefit of about $211,060. Other results are as shown in table 2 below. Table 2.—Estimated Impact of Squash Imports From Zambia on the United States Economy for Three Import Scenarios Assumed annual squash imports, MT 1 260 2 400 3 1,000 Change in U.S. consumption, MT 234 359 898 Change in U.S. production, MT −26 −41 −102 Change in wholesale price of squash, dollars per MT −$0.58 −$0.89 −$2.22 Change in consumer welfare $362,820 $558,240 $1,396,210 Change in producer welfare −$225,670 −$347,180 −$867,890 Annual net benefit $137,150 $211,060 $528,330 Note: The baseline data used are 5-year annual averages for production, consumption, prices, exports and imports, as reported in the last row of table 1. The demand and supply elasticities used are −0.66 and 0.12, respectively (Jaime E. Malaga, Gary W. Williams, and Stephen W. Fuller, “U.S.-Mexico fresh vegetable trade: the effects of trade liberalization and economic growth,” *Agricultural Economics* , Vol. 26 (October 2001): 45-55). 1 Three-year (2004 to 2006) average total squash exports by Zambia. 2 Annual exports of fresh baby squash and baby courgettes to the United States, as projected by the Government of Zambia. 3 Two-and-a-half times the projected level of exports of baby squash and baby courgettes by Zambia to the United States. In all three scenarios, consumer welfare gains would outweigh producer welfare losses. Even in the third scenario, in which we assume imports would total two-and-a-half times the level projected by the Government of Zambia, the decline in producer welfare would represent only about two-tenths of 1 percent of cash receipts received from the sale of domestic squash products. The price decline in this third scenario also would be only about two-tenths of 1 percent. Thus, our analysis indicates that U.S. entities would be unlikely to be significantly affected by this proposed rule. Impact on Small Entities The Small Business Administration

(SBA)has established guidelines for determining which types of firms are considered to be small entities under the Regulatory Flexibility Act. This proposal could affect U.S. producers of fresh vegetables (North American Industry Classification System 111219) and some importers of fresh squash. Vegetable-producing establishments are classified as small if their annual receipts are not more than $750,000. 5 According to the 2002 Census of Agriculture, there were 11,035 squash operations with production valued at $288 million. These facilities are considered to be small if their annual receipts are not more than $750,000. Over 98.6 percent of these operations (10,883) are considered to be small while the rest

(152)are considered large. Based on share of acreage (nearly 60 percent of the total), the small operations had combined annual cash receipts of about $168 million and an average income of about $15,500, while the large operations had combined sales of about $120 million with an average income of about $787,900. As shown in table 3, the impact of potential squash imports on U.S. producers as a result of this rule would be small. The decrease in producer welfare per small entity is less than $47 or about 0.30 percent of average annual sales of small entities, when we assume 1,000 MT of squash are exported to the United States from Zambia (two-and-a-half times Zambia's projected annual exports). 5 SBA, Small business size standards matched to the North American Industry Classification System 2002, effective October, 2007 ( *http://www.sba.gov/size/sizetable2002.html* ). Table 3.—Economic Impact of Potential Squash Imports From Zambia on U.S. Small Entities, Assuming Annual Exports of 1,000 MT to the United States, 2006 Dollars Total decline in producer welfare 1 −$867,890. Decrease in welfare incurred by small entities 2 −$506,850. Average decrease per acre, small entities 3 −$12.18. Average decrease per small entity 4 −$46.50. Average decrease as percentage of average sales, small entities 5 −0.30 percent. 1 From table 2. 2 Change in producer welfare multiplied by 58.4 percent, the percentage of total acreage planted by producers with annual revenues of not more than $750,000, that is, small entities. We assume that the change in producer welfare would be proportional to acreage share. 3 Decrease in producer welfare for small entities divided by 41,619, the number of acres planted by small entities. 4 Average decrease per acre multiplied by 3.82, the average number of acres per small entity. 5 Average decrease per small entity divided by $15,500, the average annual revenue per small entity. Again, table 3 considers a level of importation that is 2 1/2 times the projected imports of baby squash and baby courgettes; at expected levels of importation, the expected economic impacts would be even smaller. In addition, this analysis assumes that gains to Zambian exporters do not come at the expense of any exporting countries; if any displacement occurs, the impact of the proposed rule would be reduced further. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities. Executive Order 12988 This proposed rule would allow baby squash and baby courgettes to be imported into the United States from Zambia. If this proposed rule is adopted, State and local laws and regulations regarding baby squash and baby courgettes imported under this rule would be preempted while the fruit is in foreign commerce. Fresh baby squash and baby courgettes are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule. Paperwork Reduction Act In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2007-0144. Please send a copy of your comments to:

(1)Docket No. APHIS-2007-0144, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238, and

(2)Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule. In this document, we are proposing to allow the importation from Zambia of baby squash and baby courgettes that have been produced subject to a systems approach. Baby squash and baby courgettes imported subject to this systems approach would be required to be accompanied by a phytosanitary certificate stating that they were produced in accordance with the proposed regulations. Under the systems approach, records of fruit fly trapping would have to be maintained, and boxes of fruit would have to be labeled with the greenhouse from which they originated. We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1)Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2)Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3)Enhance the quality, utility, and clarity of the information to be collected; and

(4)Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses). *Estimate of burden:* Public reporting burden for this collection of information is estimated to average 0.2244 hours per response. *Respondents:* Importers. *Estimated annual number of respondents:* 17. *Estimated annual number of responses per respondent:* 14.4118. *Estimated annual number of responses:* 245. *Estimated total annual burden on respondents:* 55 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at

(301)851-2908. E-Government Act Compliance The Animal and Plant Health Inspection Service is committed to compliance 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. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at

(301)851-2908. List of Subjects in 7 CFR Part 319 Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables. Accordingly, we propose to amend 7 CFR part 319 as follows: PART 319—FOREIGN QUARANTINE NOTICES 1. The authority citation for part 319 continues to read as follows: Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 2. A new § 319.56-48 is added to read as follows: § 319.56-48 Conditions governing the entry of baby squash and baby courgettes from Zambia. Baby squash ( *Curcurbita maxima* Duchesne) and baby courgettes ( *C. pepo.* L.) measuring 10 to 25 millimeters (0.39 to 0.98 inches) in diameter and 60 to 105 millimeters (2.36 to 4.13 inches) in length may be imported into the continental United States from Zambia only under the conditions described in this section. These conditions are designed to prevent the introduction of the following quarantine pests: *Aulacaspis tubercularis, Dacus bivitattus, Dacus ciliatus, Dacus frontalis, Dacus lounsburyii, Dacus punctatifrons, Dacus vertebratus, Diaphania indica, Helicoverpa armigera* , and *Spodoptera littoralis* .

(a)*Approved greenhouses* . The baby squash and baby courgettes must be grown in Zambia in insect-proof, pest-free greenhouses approved jointly by the Zambian national plant protection organization

(NPPO)and APHIS.

(1)The greenhouses must be equipped with double self-closing doors.

(2)Any vents or openings in the greenhouses (other than the double self-closing doors) must be covered with 1.6 mm screening in order to prevent the entry of pests into the greenhouse.

(3)The greenhouses must be inspected periodically by the Zambian NPPO or its approved designee to ensure that sanitary procedures are employed to exclude plant pests and diseases and to verify that the screening is intact.

(4)The greenhouses also must be inspected monthly for the quarantine pests listed in the introductory text of this section by the Zambian NPPO or its approved designee, beginning 2 months before harvest and continuing for the duration of the harvest. APHIS must be allowed to inspect or monitor the greenhouses during this period as well. If, during these inspections, any of the quarantine pests listed in the introductory text of this section is found inside the greenhouse, the Zambian NPPO will immediately prohibit that greenhouse from exporting baby squash or baby courgettes to the United States and notify APHIS of the action. The prohibition will remain in effect until the Zambian NPPO and APHIS agree that the risk has been mitigated.

(b)*Trapping for Dacus spp. fruit flies* . Trapping for *Dacus bivitattus, Dacus ciliatus, Dacus frontalis, Dacus lounsburyii, Dacus punctatifrons* , and *Dacus vertebratus* (referred to in paragraph

(b)of this section, collectively, as *Dacus* spp. fruit flies) is required both inside and outside the greenhouse. Trapping must be conducted beginning 2 months before harvest and continue for the duration of the harvest.

(1)*Inside the greenhouse* . Approved fruit fly traps with an approved protein bait must be placed inside the greenhouses at a density of four traps per hectare, with a minimum of at least two traps per greenhouse. The traps must be serviced at least once every 7 days. If a *Dacus* spp. fruit fly is found in a trap inside the greenhouse, the Zambian NPPO will immediately prohibit that greenhouse from exporting baby squash or baby courgettes to the United States and notify APHIS of the action. The prohibition will remain in effect until the Zambian NPPO and APHIS agree that the risk has been mitigated.

(2)*Outside the greenhouse* .

(i)Approved fruit fly traps with an approved protein bait must be placed inside a buffer area 500 meters wide around the greenhouse at a density of 1 trap per 10 hectares, with a total of at least 10 traps. At least one of these traps must be placed near the greenhouse. These traps must be serviced at least once every 7 days.

(ii)No shade trees are permitted within 10 meters of the entry door of the greenhouse, and no fruit fly host plants are permitted within 50 meters of the entry door of the greenhouse. While trapping is being conducted, no fruit fly host material (such as fruit) may be brought into the greenhouse or be discarded within 50 meters of the entry door of the greenhouse. Ground applications of an approved protein bait spray for the *Dacus* spp. fruit flies must be used on all shade trees and host plants within 200 meters surrounding the greenhouse every 6 to 10 days starting at least 30 days before and during harvest.

(iii)*Dacus* spp. fruit fly prevalence levels lower than 0.7 flies per trap per week (F/T/W) must be maintained outside the greenhouse for the duration of the trapping. If the F/T/W is 0.7 or greater outside the greenhouse, the Zambian NPPO will immediately prohibit that greenhouse from exporting baby squash or baby courgettes to the United States and notify APHIS of the action. The prohibition will remain in effect until the Zambian NPPO and APHIS agree that the risk has been mitigated.

(3)*Records and monitoring* . The Zambian NPPO or its approved designee must maintain records of trap placement, trap servicing, and any *Dacus* spp. captures. The Zambian NPPO must maintain an APHIS-approved quality control program to audit the trapping program. APHIS must be given access to review 1 year's worth of trapping data for any approved greenhouse upon request.

(c)*Packinghouse procedures* . Baby squash and baby courgettes must be packed within 24 hours of harvest in a pest-exclusionary packinghouse. No shade trees are permitted within 10 meters of the entry door of the packinghouse, and no fruit fly host plants are permitted within 50 meters of the entry door of the packinghouse. In addition, during packing, no fruit fly host material other than the baby squash and baby courgettes may be brought into the packinghouse, and no fruit fly host material may be discarded within 50 meters of the entry door of the packinghouse. The baby squash or baby courgettes must be safeguarded by a pest-proof screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. The baby squash or baby courgettes must be packed in insect-proof cartons for shipment to the United States. These cartons must be labeled with the identity of the greenhouse. While packing the baby squash or baby courgettes for export to the United States, the packinghouse may only accept baby squash or baby courgettes from approved greenhouses. These safeguards must remain intact until the arrival of the baby squash or baby courgettes in the United States. If the safeguards do not remain intact, the consignment will not be allowed to enter the United States.

(d)*Commercial consignments* . Baby squash and baby courgettes from Zambia may be imported in commercial consignments only.

(e)*Phytosanitary certificate* . Each consignment of baby squash and baby courgettes must be accompanied by a phytosanitary certificate of inspection issued by the Zambian NPPO with an additional declaration reading as follows: “These baby squash or baby courgettes were produced in accordance with 7 CFR 319.56-48.” Done in Washington, DC, this 7th day of May 2008. Cindy J. Smith, Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-10920 Filed 5-15-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. APHIS-2008-0017] RIN 0579-AC77 Importation of Tomatoes From Souss-Massa, Morocco AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule. SUMMARY: We are proposing to allow the importation of commercial consignments of tomatoes from the Souss-Massa region of Morocco subject to a systems approach similar to that which is already in place for tomatoes imported into the United States from other areas of Morocco. The tomatoes would have to be produced under conditions that would include requirements for pest exclusion at the production site, fruit fly trapping inside the production site, and pest-exclusionary packinghouse procedures. The tomatoes would also be required to be accompanied by a phytosanitary certificate issued by the Moroccan national plant protection organization with an additional declaration stating that the tomatoes have been grown in registered greenhouses in the Souss-Massa region and were 60 percent or less pink at the time of packing. This action would allow for the importation of commercial consignments of tomatoes from the Souss-Massa region of Morocco into the United States while continuing to provide protection against the introduction of quarantine pests. DATES: We will consider all comments that we receive on or before July 15, 2008. ADDRESSES: You may submit comments by either of the following methods: *Federal eRulemaking Portal:* Go to * http://www.regulations.gov/fdmspublic/component/ main?main=DocketDetail&d=APHIS-2008-0017 * to submit or view comments and to view supporting and related materials available electronically. *Postal Mail/Commercial Delivery:* Please send two copies of your comment to Docket No. APHIS-2008-0017, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2008-0017. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;

(301)734-8758. SUPPLEMENTARY INFORMATION: Background The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-47, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States. Currently, the regulations in § 319.56-28(c) authorize the importation of pink tomatoes from the provinces of El Jadida and Safi in Morocco and the province of Dahkla in Western Sahara into the United States subject to a systems approach. This systems approach requires tomato production in an area of low prevalence and production in a pest-free growing structure to mitigate Mediterranean fruit fly (Medfly, *Ceratitis capitata* ). The Moroccan Ministry of Agriculture, Division of Plant Protection, Inspection, and Enforcement (DPVCTRF), has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow tomatoes ( *Lycopersicon esculentum* L.) to be imported from the Souss-Massa region of Morocco into the United States. As part of our evaluation of Morocco's request, we prepared a commodity import evaluation document (CIED). Copies of the CIED may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov Web site (see ADDRESSES above for instruction for accessing Regulations.gov). We prepared a CIED for this action rather than a pest risk analysis because the pest risks associated with importing tomatoes from other regions of Morocco have been previously determined through the pest risk analysis prepared to support the rulemaking that led to the establishment of the existing systems approach referred to above under which tomatoes may be imported from elsewhere in Morocco and Western Sahara. We expect that a comparable systems approach can be used successfully for the proposed production area in Souss-Massa; however, because the Souss-Massa region is not a low prevalence area for Medfly, we have determined that additional measures would be necessary to mitigate the risks posed by the Medfly. Therefore, the systems approach we would use for tomatoes from the Souss-Massa region would include requirements regarding the absence or treatment of shade trees within a specified distance of greenhouses and packinghouses and an increased the number of traps per hectare within the greenhouses. As is currently in place for tomatoes from El Jadida or Safi in Morocco and for the province of Dahkla in Western Sahara, we would require that tomatoes from the Souss-Massa region of Morocco be grown in insect-proof greenhouses registered with, and inspected by, DPVCTRF, and approved by APHIS. The tomatoes would only be allowed to be shipped from the Souss-Massa region of Morocco between December 1 and April 30, inclusive. Beginning 2 months prior to the start of the shipping season and continuing through the end of the shipping season, DPVCTRF would be required to set and maintain Medfly traps baited with trimedlure, or other approved protein bait, inside the registered greenhouses at a rate of eight traps per hectare, with a minimum of four traps in each greenhouse. All traps would have to be checked every 7 days. We propose to require DPVCTRF to maintain records of trap placement, checking of traps, and any Medfly captures, and to make the records available to APHIS upon request. The trapping records would have to be maintained for 1 year for APHIS review. Capture of a single Medfly in a registered greenhouse during the period beginning 2 months prior to export and continuing through the duration of the harvest, or detection of a Medfly in a consignment which is traced back to a registered greenhouse, would immediately result in cancellation of exports to the United States from that registered greenhouse until the source of the infestation is determined, the Medfly infestation has been eradicated, and measures are taken to preclude any future infestation. Exports would not be reinstated until APHIS and DPVCTRF mutually determine that the risk has been properly mitigated. Packing would have to occur in a pest-exclusionary packinghouse. During the time the packinghouse is in use for exporting fruit to the United States, the packinghouse would only be able to accept fruit from registered production sites. The tomatoes would have to be pink at the time of packing, 1 be packed within 24 hours of harvest, and would have to be safeguarded by fruit fly-proof mesh screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. In addition, the tomatoes would have to be packed in fruit fly-proof containers or covered by an insect-proof mesh or plastic tarpaulin for transit to the ship or airport and subsequent shipping to the United States. These safeguards would have to be intact upon arrival to the United States. For sea shipments, containers would have to be kept closed if stored within 20 meters of Medfly host materials prior to loading. 1 The surface area of a pink tomato is more than 30 percent but not more than 60 percent pink and/or red. In order to reduce the pest pressure of Medfly outside the greenhouse and packinghouse, no shade trees would be permitted within 10 meters of the entry door of the greenhouse or packinghouse, and no fruit fly host material would be permitted within 50 meters of the entry door of the greenhouse. Ground applications of an approved protein bait spray pesticide for Medfly would have to be used on all shade trees and host plants within 200 meters of the greenhouses every 6 to 10 days starting at least 30 days before harvest and continuing through the end of the harvest. DPVCTRF would be responsible for export certification inspection and issuance of phytosanitary certificates. We propose to require each shipment of pink tomatoes to be accompanied by a phytosanitary certificate issued by DPVCTRF and bearing the declaration, “These tomatoes were grown in registered greenhouses in the Souss-Massa region and were pink at the time of packing.” We are proposing to add these requirements to § 319.56-28 as a new paragraph (g). We would also amend the introductory text of paragraph

(c)of that section in order to make it more clear that the provisions in that paragraph apply only to the El Jadida and Safi provinces in Morocco and the province of Dahkla in Western Sahara rather than to all of Morocco and Western Sahara. Executive Order 12866 and Regulatory Flexibility Act This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. We are proposing to allow the importation of commercial shipments of tomatoes from the Souss-Massa region of Morocco subject to a systems approach similar to that which is already in place for tomatoes imported into the United States from other areas of Morocco. The systems approach would include requirements for pest exclusion at the production site, fruit fly trapping inside the production site, and pest-exclusionary packinghouse procedures. The tomatoes would also be required to be accompanied by a phytosanitary certificate issued by the Moroccan national plant protection organization with an additional declaration stating that the tomatoes have been grown in registered greenhouses in the Souss-Massa region and were 60 percent or less pink at the time of packing. This action would allow for the importation of commercial consignments of tomatoes from the Souss-Massa region of Morocco into the United States while continuing to provide protection against the introduction of quarantine pests. U.S. Tomato Production and Trade The United States is a major tomato producer and importer. The United States produced 1,858,886 metric tons

(MT)of fresh tomatoes valued at $1.6 billion in 2006, while imports that year totaled 992,334 MT. Tomato production occurs in many States. The top 10 States (Florida, California, Virginia, Georgia, Ohio, Tennessee, North Carolina, Pennsylvania, New Jersey, and Michigan) accounted for 95 percent of total cash receipts in 2006. 2 According to the 2002 Census of Agriculture (most recent data on farm sizes), there were 19,539 farms producing tomatoes in the United States. About 59 percent of these farms had less than 1 acre in tomatoes. Overall, 19,067 farms (or 97.6 percent) had a total of 95,145 acres planted in tomatoes (about 21.2 percent of the total planted area). They are considered small, averaging about 5 acres and with an average annual income of about $21,500 in 2002. The remaining 2.4 percent of the farms planted a total of 353,355 acres in tomatoes. They averaged 749 acres, with an average annual income of about $3,227,700. 3 2 USDA/ERS, Vegetables and Melons Situation and Outlook Yearbook/VGS-2007/July 26, 2007. 3 USDA/NASS, 2002 Census of Agriculture, United States Data, p. 35. As shown in table 1, U.S. tomato production has fluctuated over recent years, while there has been an upward trend in consumption. The most recent data show production was 1,945,614 MT in 2002, and declined to 1,858,886 MT in 2006, an annual rate of decline of about 1 percent. On the other hand, consumption increased over this same period, from 2,654,359 MT to 2,707,022 MT, and U.S. imports increased from 859,521 MT to 992,334 MT. Mexico is the source of the largest share of imports (85 percent in 2006), followed distantly by Canada (13.6 percent). Other minor suppliers include the Netherlands, Spain, Dominican Republic, Belgium, Israel, Italy, Costa Rica, Poland, and Guatemala. The United States was a net importer throughout the period 2002 to 2006 with average annual imports (over 934,950 MT) dwarfing exports (less than 150,620 MT). Imports represent 35 percent of consumption. Imports from Morocco are expected to be small compared to an already large import base. Table 1.—U.S. Tomato Production, Consumption, Price, Exports and Imports, 2002-2006 Year Production in metric tons Consumption in metric tons Price per metric ton Exports in metric tons Imports in metric tons 2002 1,945,614 2,654,359 $925 150,730 859,521 2003 1,773,474 2,570,398 1,144 142,520 939,444 2004 1,896,670 2,660,936 1,131 167,513 931,779 2005 1,914,360 2,717,953 1,129 148,099 951,692 2006 1,858,886 2,707,022 1,243 144,198 992,334 5-year average (2002-2006) 1,877,800 2,662,134 1,114 150,612 934,954 Source: USDA/ERS, Vegetables and Melons Situation and Outlook Yearbook/VGS-2007/July 26, 2007. Morocco Tomato Production and Trade Production of tomatoes in Morocco increased from 991,020 MT in 2002 to 1,245,000 MT in 2006. Of this total, greenhouse tomatoes, which are candidates for export to the United States, represented about 47.6 percent. Of the greenhouse total, 74 percent are produced in the Souss-Massa region. 4 Over this same period, exports fluctuated widely, ranging between 200,460 MT in 2002 and 248,740 MT in 2006, with a significantly lower level of 107,370 MT exported in 2004. The average quantity of tomatoes exported by Morocco during the period was 161,190 MT. 4 Christine Chemnitz and Harald Grethe, “EU Trade Preference for Moroccan Tomato Exports—Who Benefits?” Paper prepared for presentation at the 99th seminar of the European Association of Agricultural Economics (EAAE), “The Future of Rural Europe in the Global Agri-Food system,” 23-27 August 2005, Copenhagen. Most of the 248,740 MT exported by Morocco in 2006 went to European Union

(EU)countries (218,892 MT), especially France, which received about 86 percent of the EU share. France and Morocco have a long history of bilateral trade that is likely to continue to be strong. Exports to other EU countries accounted for about 14 percent of Morocco's total tomato trade. Non-EU countries accounted for 12 percent of the total, with Russia (20,759 MT) and Switzerland (8,989 MT) major importers. Trade records show that an average of 91 MT of tomatoes, valued at $209,000, was imported annually by the United States from Morocco between 1998 and 2001. The United States has not imported tomatoes from Morocco since 2001. Although the Souss-Massa region is a major tomato-producing area of Morocco, the record of U.S. imports suggests that only a small amount may be expected to be imported from this region. Impact of Potential Fresh Tomato Imports We estimate the impact of tomato imports from Morocco on U.S. production, consumption, and prices using a net trade welfare model. The data used were obtained from the Food Agricultural Organization

(FAO)and the Global Trade Atlas. 5 The demand and supply elasticities used are −0.62 and 0.37, respectively. 6 5 UN/FAO, FAO statistical data ( *http://faostat.fao.org* ) and Global Trade Information Services, Inc., country edition, August 2007. 6 The demand elasticity is from K. Huang, “A complete system of U.S. demand for food,” Technical Bulletin No. 182, 1993, USDA/ERS, Washington, DC, and the supply elasticity is from S.R. Hammig and R.C. Mettelhammer, “An evaluation of import tariffs in the Canada-U.S. fresh tomato market,” Canadian Journal of Agricultural Economics, Vol. 30 (1982): 133-152. We model three levels of tomato exports to the United States from Morocco of increasing magnitude:

(i)100 MT, roughly equivalent to average annual U.S. imports of tomato from Morocco, 1998-2001;

(ii)10 times this amount (1,000 MT); and

(iii)100 times historic imports (10,000 MT). Table 2 presents the changes we estimate could result from the assumed levels of U.S. tomato imports from Morocco. These include annual changes in U.S. consumption, production, wholesale price, consumer welfare, producer welfare, and net welfare. The medium level of assumed tomato exports to the United States of 1,000 MT could result in a decline of 49 cents per MT in the wholesale price of tomatoes and a fall in U.S. production of 279 MT. Consumption could increase by 721 MT. Producer welfare could decline by $840,000 and consumer welfare could increase by $1.3 million, yielding an annual net benefit of about $455,000. Table 2.—Estimated Impact on the U.S. Economy of Tomato Imports From Morocco for Three Import Scenarios Assumed annual tomato imports from Morocco, MT 1 100 2 1,000 3 10,000 Change in U.S. consumption, MT 72 721 7,209 Change in U.S. production, MT −28 −279 −2,791 Change in wholesale price of tomatoes, dollars per MT −$0.05 −$0.49 −$4.87 Change in consumer welfare $129,530 $1,295,440 $12,970,190 Change in producer welfare −$84,040 −$840,300 −$8,396,870 Annual net benefit $45,490 $455,140 $4,573,320 Note: The baseline data used are 5-year annual averages for production, consumption, prices, exports and imports, as reported in the last row of table 1. The demand and supply elasticities used are −0.62 and 0.37, respectively (see footnote 5 above). 1 Four-year (1998 to 2001) average annual tomato exports by Morocco to the United States. Morocco has not exported tomatoes to the United States since 2001. 2 Ten times the average fresh tomato exports to the United States from Morocco, 1998-2001. 3 One hundred times the average fresh tomato exports to the United States from Morocco, 1998-2001. In all three scenarios, consumer welfare gains outweigh producer welfare losses. Even in the third scenario in which we assume imports would be 100 times the level of past imports from Morocco, the decline in producer welfare would represent less than six-tenths of 1 percent of cash receipts received from the sale of domestically produced fresh tomatoes. The price decline in this third scenario also would be only about five-tenths of 1 percent. We welcome public comment that may help us to better understand possible effects of the rule on U.S. fresh tomato producers. The Small Business Administration

(SBA)has established guidelines for determining which firms are to be considered small under the Regulatory Flexibility Act. This rule could affect U.S. producers of fresh tomatoes (classified under Other Vegetable except Potato) and Melon Farming, North American Industry Classification System 111219) and some importers of fresh tomatoes. Vegetable-producing establishments are classified as small if their annual receipts are not more than $750,000. 7 According to the 2002 Census of Agriculture (most recent data on farm sizes), there were 19,539 farms producing tomatoes in the United States. About 59 percent of these farms had less than 1 acre in tomatoes. Overall, 19,067 farms (or 97.6 percent) had a total of 95,145 acres in tomatoes (about 21.2 percent of the total planted area) and are considered small, with an average of about 5 acres and an average annual income of about $21,500 in 2002. The remaining 2.4 percent farms planted a total of 353,355 acres in tomatoes (78.8 percent of the planted area). They averaged 749 acres, with an average annual income of about $3,227,700. 7 SBA, small business size standards matched to the North American Industry Classification System 2002, Effective October, 2007 ( *http://www.sba.gov/size/sizetable2002.html* ). As shown in table 3, the impact of potential tomato imports on U.S. small-entity producers as a result of this rule would be small. The annual decrease in producer welfare per small entity is less than $94, or about 0.43 percent of average annual sales by small entities, when we assume that 10,000 MT of tomatoes would be exported to the United States from Morocco because of this rule, that is, 100 times the level of past imports from Morocco. The dollar decrease in welfare for most small tomato producers would be even smaller, given that the majority planted less than one acre in tomatoes, based on the 2002 Census of Agriculture. Table 3.—The Economic Impact of Potential Tomato Imports From Morocco on U.S. Small Entities, Assuming Annual Exports of 10,000 Metric Tons to the United States, 2006 Dollars Total decline in producer welfare 1 −$8,396,870 Decrease in welfare incurred by small entities 2 −$1,780,140 Average decrease per acre, small entities 3 −$18.70 Average decrease per small entity 4 −$93.60 Average decrease as percentage of average sales, small entities 5 −0.43% 1 From table 2. 2 Change in producer welfare multiplied by 21.2 percent, the percentage of total acreage planted by producers with annual revenues of not more than $750,000, that is, small entities. We assume that the change in producer welfare would be proportional to acreage share. 3 Decrease in producer welfare for small entities divided by 95,145, the number of acres planted by small entities. 4 Average decrease per acre multiplied by 5, the average number of acres per small entity. 5 Average decrease per small entity divided by $21,500, the average annual revenue per small entity. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities. Executive Order 12988 This proposed rule would allow tomatoes to be imported into the United States from the Souss-Massa region of Morocco. If this proposed rule is adopted, State and local laws and regulations regarding tomatoes imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule. Paperwork Reduction Act In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2008-0017. Please send a copy of your comments to:

(1)Docket No. APHIS-2008-0017, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and

(2)Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule. APHIS is proposing to allow the importation of commercial consignments of tomatoes from the Souss-Massa region of Morocco subject to a systems approach similar to that which is already in place for tomatoes imported into the United States from other areas of Morocco. The tomatoes would have to be produced under conditions that would include requirements for pest exclusion at the production site, fruit fly trapping inside the production site, and pest-exclusionary packinghouse procedures. Allowing tomatoes to be imported from Souss-Massa, Morocco into the United States will require information collection activities such as recordkeeping, trapping data, and the completion of phytosanitary certificates. We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1)Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2)Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3)Enhance the quality, utility, and clarity of the information to be collected; and

(4)Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses). *Estimate of burden:* Public reporting burden for this collection of information is estimated to average 1.0051546 hours per response. *Respondents:* Foreign officials, exporters, importers, growers of tomatoes. *Estimated annual number of respondents:* 18. *Estimated annual number of responses per respondent:* 21.5555. *Estimated annual number of responses:* 388. *Estimated total annual burden on respondents:* 390 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at

(j)footnote 8 is redesignated as footnote 9. 3. In § 319.56-28, the introductory text of paragraph

(c)is revised and a new paragraph

(g)is added to read as follows: § 319.56-28 Tomatoes from certain countries.

(c)*Tomatoes (fruit) (Lycopersicon esculentum) from the provinces of El Jadida or Safi in Morocco and the province of Dahkla in Western Sahara* . Pink tomatoes may be imported into the United States from the provinces of El Jadida or Safi in Morocco and the province of Dahkla in Western Sahara only in accordance with this section and other applicable provisions of this subpart. 7 7 See footnote 5 to paragraph

(a)of this section.

(g)*Tomatoes (fruit) (Lycopersicon esculentum) from the Souss-Massa region of Morocco* . Pink tomatoes may be imported into the United States from the Souss-Massa region of Morocco only in accordance with this section and other applicable provisions of this subpart. 8 8 See footnote 5 to paragraph

(a)of this section.

(1)The tomatoes must be grown in the Souss-Massa region of Morocco in insect-proof greenhouses registered with, and inspected by, the Moroccan Ministry of Agriculture, Division of Plant Protection, Inspection, and Enforcement (DPVCTRF);

(2)The tomatoes may be shipped from the Souss-Massa region of Morocco only between December 1 and April 30, inclusive;

(3)Beginning 2 months prior to the start of the shipping season and continuing through the end of the shipping season, DPVCTRF must set and maintain Mediterranean fruit fly (Medfly) traps baited with trimedlure, or other approved protein bait, inside the greenhouses at a rate of 8 traps per hectare, with a minimum of 4 traps in each greenhouse. All traps must be checked every 7 days;

(4)DPVCTRF must maintain records of trap placement, checking of traps, and any Medfly captures, and make the records available to APHIS upon request. DPVCTRF must maintain an APHIS-approved quality control program to monitor or audit the trapping program. The trapping records must be maintained for 1 year for APHIS review;

(5)Capture of a single Medfly in a registered greenhouse during the 2 months prior to export and continuing through the duration of the harvest, or detection of a Medfly in a consignment which is traced back to a registered greenhouse, will immediately result in cancellation of exports from that greenhouse until the source of the infestation is determined, the Medfly infestation has been eradicated, and measures are taken to preclude any future infestation. Exports will not be reinstated until APHIS and DPVCTRF mutually determine that risk mitigation has been achieved;

(6)No shade trees are permitted within 10 meters of the entry door of the greenhouse or packinghouse, and no Medfly host material is permitted within 50 meters of the entry door of the greenhouse or packinghouse. Ground applications of an approved protein bait spray pesticide for Medfly must be used on all shade trees and host plants within 200 meters surrounding the greenhouses as required by APHIS. Application must occur every 6 to 10 days starting at least 30 days before and during harvest;

(7)The tomatoes must be packed within 24 hours of harvest and must be pink at the time of packing. They must be safeguarded by an insect-proof mesh screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. They must be packed in insect-proof cartons or containers, or covered by insect-proof mesh or plastic tarpaulin for transit to the airport or ship and export to the United States. These safeguards must be intact upon arrival in the United States. Sea containers must be kept closed if stored within 20 meters of Medfly host materials prior to loading; and

(8)DPVCTRF is responsible for export certification inspection and issuance of phytosanitary certificates. Each consignment of tomatoes must be accompanied by a phytosanitary certificate issued by DPVCTRF and bearing the declaration, “These tomatoes were grown in registered greenhouses in El Jadida or Safi Province, Morocco, and were pink at the time of packing” or “These tomatoes were grown in registered greenhouses in the Souss-Massa region and were pink at the time of packing.” Done in Washington, DC, this 7th day of May 2008. Cindy J. Smith, Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-10923 Filed 5-15-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Part 93 [Docket No. APHIS-2007-0141] Importation of Horses, Ruminants, Swine, and Dogs; Remove Panama From Lists of Regions Where Screwworm Is Considered To Exist AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule. SUMMARY: We are proposing to amend the regulations regarding the importation of live horses, ruminants, swine, and dogs by removing Panama from the lists of regions where screwworm is considered to exist. We are taking this action because the eradication of screwworm from Panama has been confirmed. This action would relieve certain screwworm-related certification and inspection requirements for live animals imported into the United States from Panama. DATES: We will consider all comments that we receive on or before July 15, 2008. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0141* to submit or view comments and to view supporting and related materials available electronically. • *Postal Mail/Commercial Delivery:* Please send two copies of your comment to Docket No. APHIS-2007-0141, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0141. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call

(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: Dr. Julia Punderson, Regionalization Evaluation Services—Import, Sanitary Trade Issues Team, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231;

(301)734-0757. SUPPLEMENTARY INFORMATION: Background The regulations in 9 CFR part 93 (referred to below as the regulations) prohibit or restrict the importation of certain animals into the United States to prevent the introduction of pests and diseases of livestock and poultry, including New World screwworm ( *Cochliomyia hominivorax* ). Screwworm, a pest native to tropical areas and currently found in South America and the Caribbean, causes extensive damage to livestock and other warm-blooded animals. Subparts C, D, E, and F of the regulations govern the importation of horses, ruminants, swine, and dogs, respectively, and include provisions for the inspection and treatment of these animals if imported from any region of the world where screwworm is considered to exist. Sections 93.301, 93.405, 93.505, and 93.600 list all the regions of the world where screwworm is considered to exist. The regulations include provisions that the animals be inspected, quarantined, and, if necessary, treated for screwworms, and require that the animals be accompanied to the United States by a certificate signed by a full-time salaried veterinary official of the exporting region attesting that the above conditions have been met. Additionally, on arrival, horses must be quarantined at an animal import center for a minimum of 7 days and must be examined prior to release from quarantine. The Animal and Plant Health Inspection Service (APHIS) of the Unites States Department of Agriculture

(USDA)has responsibility for taking actions to exclude, eradicate, and control agricultural pests, such as screwworm, in the United States. Eradication of indigenous screwworm in the United States using systematic releases of sterile adult screwworm flies was completed in 1966. Sporadic screwworm outbreaks continued to occur and, in 1972, a large outbreak occurred in southwestern States as a result of screwworms entering the United States on livestock from Mexico. This outbreak led to plans that were then developed to progressively eradicate screwworm in Mexico and establish a biological barrier to prevent incursion of screwworm into the United States. In 1972, USDA began a cooperative screwworm program to help Mexico eradicate screwworm. This program was later expanded with the goal of covering the entire Central American Isthmus and Panama, eventually reaching the Darien Gap area on Panama's border with Colombia. Successful cooperative screwworm eradication programs were completed in Mexico in 1991, Belize and Guatemala in 1994, El Salvador in 1995, Honduras in 1996, Nicaragua in 1999, and Costa Rica in 2000. USDA began a cooperative screwworm eradication program in Panama in 1994 and, in 2006, Panama requested that APHIS evaluate the animal disease status of Panama with respect to screwworm and provided information in support of that request in accordance with 9 CFR part 92, “Importation of Animals and Animal Products: Procedures for Requesting Recognition of Regions.” Using information submitted to us by the Commission for the Eradication and Prevention of Screwworm (COPEG), Panama's Ministry of Agriculture and Livestock Development (MIDA), and USDA, we have reviewed and analyzed the animal health status of Panama with respect to screwworm. Our determinations concerning this request, based on the information submitted to us and the information we gathered, are set forth below. Risk Analysis APHIS conducted a risk analysis to examine the risk of introducing screwworm into the United States from the importation of live horses, ruminants, swine, and dogs from Panama. We summarize our findings for each of the 11 factors in 9 CFR 92.2 below and summarize our risk considerations of these findings following our discussions of the factors. Authority, Organization, and Veterinary Infrastructure In Panama, the eradication and prevention of screwworm has been accomplished through the efforts of COPEG, a cooperative program involving MIDA and USDA. COPEG serves as the veterinary authority, and in this role directly controls the specifics of the eradication and prevention program, with the full cooperation of Panama's veterinary infrastructure, as well as financial and scientific support from USDA. COPEG applied the preexisting infrastructure and legal framework developed within Panama for the eradication of foot-and-mouth disease (FMD), and shares many of the FMD program resources developed under the Panama-U.S. Commission for the Prevention of Foot-and-Mouth Disease (COPFA). APHIS has determined that Panama has available the necessary legal authority, infrastructure, budget, and supporting resources to carry out the program and maintain its screwworm-free status. Disease Status in the Region The last reported native case of screwworm outside the permanent biological barrier in the area of the Darien Gap occurred in 2001. The continued, but extremely low, finding of screwworm within the buffer area adjoining the border with Colombia is an expected occurrence. The established permanent biological barrier and continued intensive surveillance will act to prevent the spread of screwworm into the rest of Panama and Central America. APHIS could not identify any risks associated with this factor that would pose an unacceptable risk to the United States if trade with Panama in live animals were to occur. Disease Status of Adjacent Regions Panama shares borders with Costa Rica and Colombia. While screwworm has been eradicated in Costa Rica, Colombia is still considered to be affected. The existence of a common land border with a screwworm-affected region presents a risk for reintroducing screwworm into Panama from Colombia. However, APHIS has determined that Panama's active disease control and surveillance program and maintenance of the permanent biological barrier with continuous distribution of sterile screwworm flies serves to mitigate the risk of reinfestation of Panama with screwworm. Extent of Active Disease Control Program As previously noted, the eradication and prevention of screwworm in Panama was the result of cooperative efforts of USDA and Panama through COPEG, and involved the use of the sterile fly release method and the establishment of a permanent biological barrier between Central America and the South American Continent. APHIS has determined that Panama has an effective prevention program in place based upon Panama's active disease control and surveillance program and maintenance of the permanent biological barrier with continuous distribution of sterile screwworm flies. These findings are described in further detail in the risk analysis. Vaccination Vaccination is not an applicable control method for screwworm. Treating wounds and spraying or dipping animals with an approved product such as organophosphates or other insecticide will provide protection against screwworm for up to 7 to 10 days. However, the most effective way to control screwworm infestation remains eradication. Separation From Adjacent Regions of Higher Risk The Darien Province forms the border between Panama and Colombia. This border is characterized by mountainous rainforest on the Panamanian side and flat marsh and swamp on the Colombian side of the border. This area is called the Darien Gap and is roughly 100 miles long and 30 miles wide. The land supports very little agriculture and is sparsely populated. There are no major roads crossing the Darien Gap, which limits land crossing from Central America to South America. The natural physical characteristics of the area enhance its effectiveness as a biological barrier. The remote nature of the Darien Gap was first utilized over 40 years ago in the eradication and control effort for FMD because it serves as a natural barrier to dissemination of infectious diseases such as FMD. APHIS finds that the natural and biological barriers of the Darien Gap limit the movement of fertile screwworm flies or potentially affected animal species from the South American Continent into Panama, effectively controlling the risk of screwworm introduction into Panama outside of the permanent biological barrier. Movement Controls The movement controls established previously as part of FMD legislation continue to be implemented and enforced by COPEG and MIDA officials. These established movement controls limit the illegal movement of livestock from the inspection and control zones in Darien Province and the Kuna Yala region into the rest of Panama. The continuous monitoring of the permanent biological barrier in the Darien Gap is a strong feature of the cooperative FMD and screwworm eradication and prevention programs. The system of inspection posts and monitoring throughout Panama significantly limits the risk of introduction and spread of screwworm in Panama. These findings are described in further detail in the risk analysis. Livestock Demographics and Marketing Practices Panama has a total human population of approximately 3 million, with 45 percent of the populations living in rural areas. More than 70 percent of Panamanian exports are agricultural products; however, the vast majority of these imports are plant products such as sugar and bananas. Nonetheless, livestock raising (cattle, pigs, and poultry) is an important and long-established economic activity in Panama, and beef and hides are exported. Panama has about 1.5 million head of cattle on 40,000 holdings. Cattle are primarily raised in the southwestern provinces of Chiriquí, Los Santos, and Veraguas. There are 300,000 swine on 28,000 holdings, located primarily in the central and western provinces of Panamá, Los Santos, Chiriquí, and Veraguas. Cattle are only allowed to be raised in the control zone area of Darien Province where the cattle population density is low and involves roughly 8 percent of the province, with an estimated 0.9 animals per hectare. In the inspection zone area of Darien Province, commercial cattle rearing is prohibited and agricultural production is limited to swine raised for local consumption. The poultry population in Panama is approximately 14 million chickens on 150,000 holdings located primarily in the central provinces of Panamá, Coclé and Colón. There are an additional 200,000 turkeys, ducks, and geese on 20,000 holdings throughout Panama as well as a small population of horses and mules (135,000 head on 46,000 holdings), and sheep and goats (12,000 head on 1,000 holdings). Few screwworm-susceptible live animals are exported. Currently, the exportation of live animals is not a large part of Panama's agricultural economy. Screwworm larvae are not able to survive in nonviable tissue, so the importation of meat or other animal products would not pose a risk for introduction of screwworm into the United States. Disease Surveillance The infrastructure developed for FMD surveillance has been applied effectively to the screwworm eradication and control program. The measures in place in the inspection and control zones, which includes the Darien Province and the Emera and Kuna Yala indigenous comaracas, are adequate to rapidly detect and eradicate screwworm and prevent the reintroduction of screwworm into the rest of Panama. Sample submission from all parts of Panama reflects both targeted surveillance within the inspection and control areas and surveillance in the livestock production areas. APHIS finds that the active surveillance program in Panama is sufficient to detect the presence of screwworm if it were to be reintroduced into Panama. Diagnostic Laboratory Capabilities Laboratory diagnosis of screwworm in Panama is the responsibility of the central Laboratory for the Diagnosis of Vesicular Disease in Toucaman. APHIS considers Panama to have the diagnostic capabilities to adequately diagnose the presence of screwworm. Emergency Response Capacity Panama has in place a contingency plan for screwworm outbreaks under the supervision of COPEG. The contingency plans are supplemented by official instructions and guidelines detailing procedures for disease notification and confirmation, sampling methods, and diagnostic procedures. APHIS has determined that Panama has in place the infrastructure and legal authority to declare an emergency and take appropriate action in case of a screwworm outbreak. The emergency response capability was proven to be effective in 2003 following an accidental release of fertile flies. The emergency response plan is comprehensive and allowed COPEG to respond rapidly with extensive resources, utilizing the cooperation of several government agencies to rapidly contain and eradicate the accidental infestation. APHIS was unable to identify specific limitations in this system that would pose a risk to the United States. These findings are described in further detail in a risk analysis that may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT and may be viewed on the Internet on the Regulations.gov Web site. (A link to Regulations.gov is provided under the heading ADDRESSES at the beginning of this proposed rule.) The evaluation documents the factors that have led us to conclude that Panama has successfully eradicated screwworm. Therefore, we are proposing to remove Panama from the lists in §§ 93.301(j), 93.405(a)(3), 93.505(b), and 93.600(a) of regions where screwworm is considered to exist. Executive Order 12866 and Regulatory Flexibility Act This proposed rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866. This proposed rule would amend the regulations regarding the importation of live horses, ruminants, swine, and dogs by removing Panama from the lists of regions where screwworm is considered to exist. We are taking this action because the eradication of screwworm from Panama has been confirmed. This action would relieve certain screwworm-related certification and inspection requirements for live animals imported into the United States from Panama. No significant change in program operations is anticipated as a result of this proposed rulemaking, nor will this action affect other Federal agencies, State governments, or local governments. The cost of all technical support activities, including establishment of animal quarantine control measures, treatment stations, maintenance of livestock census, screwworm surveillance, establishment and maintenance of laboratory support, and aerial dispersion of sterile screwworm flies in Panama is provided by COPEG and the cooperative agreement funded by the USDA and MIDA. When importing live animals from a region where screwworm is considered to exist, the cost of any required testing (and treatment, if needed) would be paid by the owner of the animals being shipped. Our proposal to remove Panama from the list of regions where screwworm is considered to exist would reduce the cost for producers and others in Panama to export ruminants, swine, horses, and dogs to the United States. The economic effects associated with the proposed changes are likely to be limited. This is because the amount of live animals exported into the United States from Panama is likely to remain small. Trade statistics indicate that since 2001, the United States has not imported any ruminants, swine, or dogs from Panama. Equine imports from Panama over this period have numbered only 163, which is approximately 0.06 percent of all horse imports. 1 1 Based on U.S. Census Bureau data, as presented by Foreign Agricultural Service, USDA: *http://www.fas.usda.gov/ustrade/USTImHS10.asp?QI=online_trade_dataTRad* . According to Small Business Administration size standards for beef cattle ranching and farming (North American Industry Classification System (NAICS) 112111), dairy cattle and milk production (NAICS 112120), hog and pig farming (NAICS 112210), sheep farming (NAICS 112410), goat farming (NAICS 112420), and horse and other equine production (NAICS 112920), as well as the commercial production of dogs, which is classified under “all other animal production” (NAICS 112990), 2 operations with not more than $750,000 in annual sales are considered small entities. We do not expect that these producers, small or otherwise, would be affected significantly by the proposed change in Panama's screwworm status. This is because, for the reasons discussed above, live ruminants, swine, horses and dogs from Panama do not play much, if any, of a role in their operations, and few susceptible live animals are expected to be exported. 2 The “all other animal production” classification also includes the production of other animals, such as adornment birds (swans, peacocks, flamingos), alpacas, birds for sale, buffalos, cats, crickets, deer, elk, laboratory animals, llamas, rattlesnakes, worms, and breeding of pets. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities. Executive Order 12988 This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted:

(1)All State and local laws and regulations that are inconsistent with this rule will be preempted;

(2)no retroactive effect will be given to this rule; and

(3)administrative proceedings will not be required before parties may file suit in court challenging this rule. Paperwork Reduction Act This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 9 CFR Part 93 Animal diseases, Imports, Livestock, Poultry and poultry products, Quarantine, Reporting and recordkeeping requirements. Accordingly, we propose to amend 9 CFR part 93 as follows: PART 93—IMPORTATION OF CERTAIN ANIMALS, BIRDS, FISH, AND POULTRY, AND CERTAIN ANIMAL, BIRD, AND POULTRY PRODUCTS; REQUIREMENTS FOR MEANS OF CONVEYANCE AND SHIPPING CONTAINERS 1. The authority citation for part 93 continues to read as follows: Authority: 7 U.S.C. 1622 and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4. § 93.301 [Amended] 2. In § 93.301, paragraph

(j)is amended by removing the word “Panama,”. § 93.405 [Amended] 3. In § 93.405, paragraph (a)(3) is amended by removing the word “Panama,”. § 93.505 [Amended] 4. In § 93.505, paragraph

(b)is amended by removing the word “Panama,”. § 93.600 [Amended] 5. In § 93.600, paragraph

(a)is amended by removing the word “Panama,”. Done in Washington, DC, this 7th day of May 2008. Cindy J. Smith, Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-10918 Filed 5-15-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF ENERGY 10 CFR Parts 600 and 1024 RIN 1991-AB77 Assistance Regulations AGENCY: Department of Energy. ACTION: Notice of proposed rulemaking. SUMMARY: The Department of Energy

(DOE)is proposing to amend its Assistance Regulations to make changes to streamline and simplify its procedures for soliciting, awarding, and administering its financial assistance agreements. These changes are being made to make technical corrections, to revise sections affected by the Energy Policy Act of 2005, and to further DOE's implementation of the Federal Financial Assistance Management Improvement Act of 1999. DOE is also proposing to remove Part 1024, Procedures for Financial Assistance Appeals, in its entirety. DATES: Interested parties should submit written comments on or before July 15, 2008. ADDRESSES: This proposed rule is available and comments may be submitted online at *http://www.regulations.gov* . Comments may also be submitted electronically to *Jacqueline.kniskern@hq.doe.gov* . Comments may be mailed to: Jacqueline Kniskern, Procurement Policy Analyst; MA-61/Forrestal Building; U.S. Department of Energy; 1000 Independence Avenue, SW., Washington, DC 20585. Electronic submissions are encouraged to ensure timely receipt. FOR FURTHER INFORMATION CONTACT: Ms. Jacqueline Kniskern, Office of Procurement and Assistance Policy, U.S. Department of Energy, at 202-287-1342 or *Jacqueline.kniskern@hq.doe.gov* . SUPPLEMENTARY INFORMATION: I. Background II. Explanation of Changes III. Procedural Requirements A. Review Under Executive Order 12866 B. Review Under the Regulatory Flexibility Act of 1980 C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under the Treasury and General Government Appropriations Act, 2001 J. Review Under Executive Order 13211 K. Approval by the Office of the Secretary of Energy I. Background DOE has been actively engaged in the government-wide effort to streamline and simplify the application, administrative and reporting procedures for Federal financial assistance programs pursuant to the Federal Financial Assistance Management Improvement Act of 1999, Public Law No. 106-107. As part of this initiative, DOE has solicited comments and suggestions from the grant community and made changes to its assistance regulations. In particular, the DOE added to 10 CFR Part 600 Subpart D, Administrative Requirements for Grants and Cooperative Agreements with For-Profit Organizations, in a rule published in the **Federal Register** (68 FR 50645, August 21, 2003). DOE has also incorporated policy directives issued by the Office of Management and Budget

(OMB)that established a standard format for Federal agency announcements of funding opportunities under programs that award discretionary grants or cooperative agreements, established standard data elements for electronically posting synopses of Federal agencies' announcements of funding opportunities, and required Federal agencies to post synopses of their discretionary grant and cooperative agreement funding opportunity announcements on the Grants.gov Web site, *http://www.Grants.gov* . The final rule incorporating these policy directives was published in the **Federal Register** at 69 FR 7865 on February 20, 2004. In addition, DOE developed a standard format for its funding opportunity announcements and revised systems to comply with the new posting requirements. Today, DOE is proposing to update, streamline and simplify the general rules in Subpart A of its Financial Assistance Rules. DOE is proposing to eliminate sections that are duplicative of other sections that incorporated OMB Circulars and provide no additional guidance or information to applicants and recipients or require applicants to look at multiple sections for the same information. In addition, DOE is proposing to eliminate sections containing outdated requirements, which can be confusing to applicants and recipients. Section 988 of the Energy Policy Act of 2005, Public Law No. 109-58, established Department-wide cost sharing requirements for most research, development, demonstration, and commercial application activities initiated after the date of enactment. The requirements of section 988 take the place of the numerous, current cost sharing requirements that have been contained in previous authorization and appropriations laws. This proposed rule will implement the requirements of section 988 replacing those promulgated after the Energy Policy Act of 1992, Public Law No. 102-486. DOE is making technical corrections to provide consistency and clarity throughout the Financial Assistance Rules as put in practice and to provide references to sections in Subpart D that were not incorporated with that rule, 68 FR 50645 (August 21, 2003). Lastly, the DOE Financial Assistance Appeals Board was abolished when DOE's Energy Board of Contract Appeals was merged into the Civilian Board of Contract Appeals as required by section 847 of the National Defense Authorization Act for Fiscal Year 2006, Public Law No. 109-163. While DOE has maintained appeal rights by providing for appeals to the DOE Senior Procurement Executive

(SPE)(see section 29 of this notice for changes in 10 CFR 600.22), the regulatory procedures designed for the Financial Assistance Appeals Board are not necessary for those appeals. Internal agency procedures will be used instead. II. Section-by-Section Analysis DOE is proposing to amend 10 CFR Parts 600 and 1024 as follows. 1. Section 600.2 is amended by changing “solicitation” to “funding opportunity announcement” in paragraph

(a)to be consistent with section 600. 2. Section 600.3 is amended by capitalizing “Contracting Officer” in the definition of “Amendment”; by adding definitions for “Cost sharing or matching” and “Total project cost” to facilitate changes made in section 600.30, “Cost Sharing.” 3. Section 600.4 is amended to add a reference to section 600.304 in paragraph

(a)that was not incorporated at the time Subpart D was added to Part 600. 4. Section 600.6 is amended in paragraphs (b), (b)(1), and (c)(7) by changing “solicitation” to “funding opportunity announcement” to be consistent with section 600.8. Paragraphs

(b)and

(d)are amended to restate the concurrence and approval requirements in plain English. This revision is not intended to alter substantially the concurrence and approval requirements. 5. Section 600.8 has been renamed “Funding Opportunity Announcement” to more accurately reflect the coverage of this section. Paragraphs (a), (a)(1), and (a)(2) are amended by deleting “solicitation” and “program announcement” and replacing with “funding opportunity announcement” or its acronym “FOA.” 6. Section 600.10 is amended to add the requirement for all applicants to be registered in the Central Contractor Registration and to make changes related to the receipt of applications electronically. 7. Section 600.11 is deleted in its entirety as this information more accurately belongs in a funding opportunity announcement when applicable. 8. Section 600.12 is deleted in its entirety as the requirements of assurances and certifications have been incorporated Government-wide in the standard application forms maintained by Grants.gov. 9. Section 600.14 is marked as reserved for consistency and clarity with the rest of Part 600. 10. Section 600.15 is amended by changing “solicitation” to “funding opportunity announcement” in paragraph (b)(2) for clarity and consistency with the rest of Part 600. 11. Section 600.16 is amended by inserting a new paragraph

(b)that describes a recipient's acceptance of an award and redesignating the old paragraph

(b)as paragraph (c). 12. Section 600.17 is amended to facilitate changes to administration requirements. 13. Section 600.18 is deleted in its entirety. The recipient's responsibility for acceptance of an award has been moved to section 600.16. 14. Section 600.19 is amended by deleting, in the second sentence, the word “briefly” and the phrase “and, if for grounds other than unavailability of funds, shall offer the unsuccessful applicant the opportunity for a more detailed explanation upon request” as the applicant may always request additional information no matter the reason for the unsuccessful application. 15. Section 600.21 is amended by adding a cross reference to the applicable section of Subpart D in paragraph

(a)that was not incorporated at the time Subpart D was added to Part 600. 16. Section 600.22 is amended to update the section for changes to the Financial Assistance Appeals Board. The Financial Assistance Appeals Board was staffed by the Energy Board of Contract Appeals which was abolished by Section 847 of the National Defense Authorization Act for Fiscal Year 2006, Public Law No. 109-163. The Department is maintaining the right of recipients to appeal certain Contracting Officer's determinations by providing for appeals to the DOE or National Nuclear Security Administration

(NNSA)Senior Procurement Executive

(SPE)in place of the now defunct appeals board. Specifically, the reference to 10 CFR 1024 in paragraph

(a)is deleted as this Part is being removed by this proposed rulemaking; paragraph

(d)is updated with the correct contact information for the two SPEs; paragraphs

(e)and

(f)are updated by changing the reference to the Board to SPEs. Paragraph

(f)is also updated to include references to the applicable sections of Subpart D of this part that were not added at the time Subpart D was implemented. 17. Section 600.23 is deleted in its entirety as this information has recently been moved to Title 2 of the CFR as part of the implementation of the OMB guidance provided at 2 CFR Part 180 and as part of OMB's initiative to streamline and consolidate all federal regulations on nonprocurement debarment and suspension. 18. Section 600.24 is amended by adding references to Subpart D of 10 CFR part 600 in addition to Subparts B and C that were not updated as part of the rulemaking that added Subpart D in 2003. 19. Section 600.25 is amended by adding references to Subpart D of 10 CFR Part 600 in addition to Subparts B and C that were not updated as part of the rulemaking that added Subpart D in 2003 and to delete certain references to Subparts B, C and D that do not require written notification as previously indicated in Section 600.25. 20. Section 600.26 is deleted in its entirety as it is duplicative of sections in other areas of Part 600. 21. Section 600.28 is deleted in its entirety as it is duplicative of sections in other areas of Part 600 and 10 CFR Part 601. 22. Section 600.29 is amended to raise the dollar threshold to provide greater flexibility to Contracting Officers and recipients in award and administration of financial assistance agreements. 23. Section 600.30 is amended to incorporate the requirements of section 988 of the Energy Policy Act of 2005, Public Law No. 109-58, which standardized cost sharing requirements for research and development activities. 24. Section 600.31 is amended by capitalizing all references to Contracting Officer for consistency purposes. 25. Section 600.112 is amended by changing “solicitation” to “funding opportunity announcement” to be consistent with 600.8; deleting paragraphs (a)(1), (a)(2) and (b)(1) in order to delete requirements to use specific DOE forms as DOE is using the forms maintained by Grants.gov for applying for financial assistance as part of an overall government-wide policy; and renumbering paragraphs (b)(2) and

(c)as paragraphs

(c)and (d). 26. Section 600.113 is amended to correct the citation for “Debarment and Suspension” to 2 CFR Parts 180 and 901. 27. Section 600.117 is deleted in its entirety as representations, certifications and assurances are now received through the submission of standard application forms with government-wide changes due to the implementation of Grants.gov. 28. Section 600.305 is amended to correct the citation for Debarment and Suspension to 2 CFR Parts 180 and 901. 29. DOE is proposing to remove Part 1024 in its entirety as the Financial Assistance Appeals Board, staffed by the Energy Board of Contract Appeals, was abolished by the Department to comply with section 847 of the National Defense Authorization Act for Fiscal Year 2006, Public Law No. 109-163. The Department is maintaining the right of recipients to appeal Contracting Officer's determinations by providing for appeals to the DOE or NNSA Senior Procurement Executive

(SPE)in place of the now defunct appeals board. See 10 CFR Part 600.22 as amended by this proposed rulemaking. III. Procedural Requirements A. Review Under Executive Order 12866 This regulatory action has been determined not to be “a significant regulatory action” under Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (October 4, 1993). Accordingly, this action is not subject to review under that Executive Order by the Office of Information and Regulatory Affairs

(OIRA)of OMB. B. Review Under the Regulatory Flexibility Act of 1980 The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published procedures and policies to ensure that the potential impacts of its draft rules on small entities are properly considered during the rulemaking process, 68 FR 7990 (February 19, 2003), and has made them available on the Office of General Counsel's Web site: *http://www.gc.doe.gov* . DOE has reviewed today's rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. Today's proposed rule would subject small entities either to requirements that parallel government-wide requirements that OMB Circular A-110 establishes for other assistance awards, or to less burdensome requirements that enable firms from the commercial marketplace to participate in DOE research, development, and demonstration projects. Today's proposed amendments would not alter the substance of the OMB requirements or impose significant additional burdens. On the basis of the foregoing, DOE certifies that the rule does not have a significant economic impact on a substantial number of small entities. DOE did not prepare a regulatory flexibility analysis for this rulemaking. C. Review Under the Paperwork Reduction Act of 1995 This regulatory action will not impose any additional reporting or recordkeeping requirements subject to approval under the Paperwork Reduction Act. D. Review Under the National Environmental Policy Act DOE has concluded that promulgation of this rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ). Specifically, this rule establishes guidelines and procedures for application and review, administration, audit and closeout of assistance instruments, and, therefore, is covered under the Categorical Exclusion in paragraph A6 of Appendix A to Subpart D, 10 CFR Part 1021. Accordingly, neither an environmental assessment nor an environmental impact statement is required. E. Review Under Executive Order 13132 Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt state law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the states and carefully assess the necessity for such actions. DOE has examined today's proposed rule and has determined that it does not preempt state law and does not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132. F. Review Under Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, Civil Justice Reform, 61 FR 4729 (February 7, 1996), imposes on executive agencies the general duty to adhere to the following requirements:

(1)Eliminate drafting errors and ambiguity;

(2)write regulations to minimize litigation;

(3)provide a clear legal standard for affected conduct rather than a general standard; and

(4)promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that executive agencies make every reasonable effort to ensure that the regulation:

(1)Clearly specifies the preemptive effect, if any;

(2)clearly specifies any effect on existing federal law or regulation;

(3)provides a clear legal standard for affected conduct while promoting simplification and burden reduction;

(4)specifies the retroactive effect, if any;

(5)adequately defines key terms; and

(6)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the United States Attorney General. Section 3(c) of Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or if it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988. G. Review Under the Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995, Public Law No. 104-4, generally requires federal agencies to examine closely the impacts of regulatory actions on state, local, or tribal governments. Subsection 101(5) of Title I of that law defines a federal intergovernmental mandate to include a regulation that would impose upon state, local, or tribal governments an enforceable duty, except a condition of federal assistance or a duty arising from participating in a voluntary federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on state, local, and tribal governments, in the aggregate, or the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of the title requires a federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to state, local, or tribal governments, or the private sector, of $100 million or more in any one year (adjusted annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title requires each agency that proposed a rule containing a significant federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of state, local, and tribal governments. 2 U.S.C. 1534. This proposed rule would amend the assistance regulations with changes that streamline and simplify procedures for soliciting, awarding, and administering financial assistance agreements. The proposed rule would not result in the expenditure by state, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995. H. Review Under the Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law No. 105-277, requires federal agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. This rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. I. Review Under the Treasury and General Government Appropriations Act, 2001 The Treasury and General Government Appropriations Act, 2001, 44 U.S.C. 3516 note, provides for agencies to review most disseminations of information to the public under implementing guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. J. Review Under Executive Order 13211 Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 22, 2001), requires federal agencies to prepare and submit to the OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that:

(1)Is a significant regulatory action under Executive Order 12866, or any successor order; and

(2)is likely to have a significant adverse effect on the supply, distribution, or use of energy; or

(3)is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects. K. Approval by the Office of the Secretary of Energy The Office of the Secretary has approved the issuance of this proposed rule. List of Subjects in 10 CFR Parts 600 and 1024 Administrative practice and procedure, Assistance programs. Edward R. Simpson, Director, Office of Procurement and Assistance Management, Office of Management, Department of Energy David O. Boyd, Director, Office of Acquisition and Supply Management, National Nuclear Security Administration. For the reasons set out in the preamble, Part 600 of Chapter II, and Part 1024 of Chapter X, Title 10 of the Code of Federal Regulations are proposed to be amended as follows: PART 600—FINANCIAL ASSISTANCE RULES 1. The authority citation for part 600 continues to read as follows: Authority: 42 U.S.C. 7101 *et seq.* ; 31 U.S.C. 6301-6308; 50 U.S.C. 2401 *et seq.* , unless otherwise noted. § 600.2 [Amended] 2. Section 600.2 is amended in paragraph

(a)by removing “solicitations” and adding “funding opportunity announcements” in its place. 3. Section 600.3 is amended in the definition of “Amendment” by capitalizing “Contracting Officer”, and by adding new definitions in alphabetical order for “Cost sharing or matching” and “Total Project Cost” to read as follows: § 600.3 Definitions. *Cost sharing or matching* means that portion of project or program costs not borne by the Federal Government. *Total Project Cost* means all allowable costs, as set forth in the applicable federal cost principles, incurred in accomplishing the objective of the project during the project period, including the value of contributions made by third parties and costs incurred by Federally Funded Research and Development Centers. 4. Section 600.4 paragraph (a)(1) is amended by revising the second sentence to read as follows: § 600.4 Deviations.

(a)*General* .

(1)* * * The use of optional or discretionary provisions of this part, including special restrictive conditions used in accordance with §§ 600.114, 600.212, and 600.304 are not deviations. * * * 5. Section 600.6 is revised to read as follows: § 600.6 Eligibility.

(a)*General* . DOE shall solicit applications for financial assistance in a manner which provides for the maximum amount of competition feasible.

(b)*Restricted eligibility* . If DOE restricts eligibility, an explanation of why the restriction of eligibility is considered necessary shall be included in the funding opportunity announcement, program rule, or published notice.

(1)If the aggregate amount of DOE funds available for award under a funding opportunity announcement or published notice is $1 million or more, unless authorized by statute or program rule, such restriction of eligibility shall be:

(i)Supported by a written determination initiated by the program office;

(ii)Concurred in by legal counsel and the Contracting Officer; and

(iii)Approved by an official no less than one level below the responsible program Assistant Secretary, Deputy Administrator, or other official of equivalent authority.

(2)Where the amount of DOE funds is less than $1 million, the cognizant Head of Contracting Activity

(HCA)and the Contracting Officer may approve the determination.

(c)*Noncompetitive financial assistance* . DOE may award a grant or cooperative agreement on a noncompetitive basis only if the application satisfies one or more of the following selection criteria:

(1)The activity to be funded is necessary to the satisfactory completion of, or is a continuation or renewal of, an activity presently being funded by DOE or another Federal agency, and for which competition for support would have a significant adverse effect on continuity or completion of the activity.

(2)The activity is being or would be conducted by the applicant using its own resources or those donated or provided by third parties; however, DOE support of that activity would enhance the public benefits to be derived and DOE knows of no other entity which is conducting or is planning to conduct such an activity.

(3)The applicant is a unit of government and the activity to be supported is related to the performance of a governmental function within the subject jurisdiction, thereby precluding DOE provision of support to another entity.

(4)The applicant has exclusive domestic capability to perform the activity successfully, based upon unique equipment, proprietary data, technical expertise, or other such unique qualifications.

(5)The award implements an agreement between the United States Government and a foreign government to fund a foreign applicant.

(6)Time constraints associated with a public health, safety, welfare or national security requirement preclude competition.

(7)The proposed project was submitted as an unsolicited proposal and represents a unique or innovative idea, method, or approach which would not be eligible for financial assistance under a recent, current, or planned funding opportunity announcement, and if, as determined by DOE, a competitive funding opportunity announcement would not be appropriate.

(8)The responsible program Assistant Secretary, Deputy Administrator, or other official of equivalent authority determines that a noncompetitive award is in the public interest. This authority may not be delegated.

(d)*Approval requirements* .

(1)Where the amount of DOE funds is $1 million or greater, determinations of noncompetitive awards shall be:

(i)Documented in writing;

(ii)Concurred in by the responsible program technical official and local legal counsel; and

(iii)Approved, prior to award, by the responsible program Assistant Secretary, Deputy Administrator, or official of equivalent authority and the Contracting Officer. The approval authority may be delegated to one organizational level below the Assistant Secretary, Deputy Administrator, or official of equivalent authority.

(2)Where the amount of DOE funds is less than $1 million, determinations of noncompetitive awards shall be:

(i)Documented in writing;

(ii)Concurred in by local legal counsel, unless for a particular award or class of awards of $1 million or less, review is waived by legal counsel; and

(iii)Approved by the cognizant HCA and the Contracting Officer. § 600.8 Funding opportunity announcement. 6. Section 600.8 is amended as follows: a. The section heading is revised as set forth above. b. In paragraph

(a)introductory text, the first sentence is amended by removing “Program announcement” and adding “Funding Opportunity Announcements (FOA)” in its place. c. In paragraph (a)(1), the last sentence is amended by removing “Solicitations” and adding “FOAs” in its place. d. In paragraph (a)(2) introductory text, the first sentence is amended by removing “Program announcements” and adding “FOAs” in its place. 7. Section 600.10 is amended as follows: a. In paragraph (b), the first sentence is amended by removing “and in the number of copies” b. In paragraph (c)(1), the second sentence is amended by removing “or other approved DOE application form” c. Paragraph (c)(4) is removed. d. A new paragraph

(f)is added to read as follows: § 600.10 Form and content of application.

(f)Registration is required in the Central Contractor Registration

(CCR)for all applications. Information on registration can be obtained at *http://www.ccr.gov/Grantees.aspx* . §§ 600.11 and 600.12 [Removed] 8. Sections 600.11 and 600.12 are removed and reserved. § 600.14 [Reserved] 9. Section 600.14 is added and reserved. § 600.15 [Amended] 10. Section 600.15, paragraph (b)(2) is amended by removing “solicitation” and adding “funding opportunity announcement” in its place. 11. Section 600.16, is amended by redesignating paragraph

(b)as paragraph (c), and by adding a new paragraph

(b)to read as follows: § 600.16 Legal authority and effect of an award.

(b)Recipients are free to accept or reject the award. A request to drawdown DOE funds constitutes acceptance; however DOE may require formal acceptance of an award. 12. Section 600.17 is revised to read as follows: § 600.17 Contents of Award. Each financial assistance award shall be made on a cover agreement page, which contains basic identifying and funding information. The award will identify special terms and conditions, program regulations, the National Policy Assurances, and any other provisions necessary to establish the respective right, duties, obligations, and responsibilities of DOE and the recipient, consistent with the requirements of this part. § 600.18 [Removed] 13. Section 600.18 is removed and reserved. § 600.19 [Amended] 14. Section 600.19 is amended by removing, in the second sentence, “briefly” and “and, if for grounds other than unavailability of funds, shall offer the unsuccessful applicant the opportunity for a more detailed explanation upon request”. § 600.21 [Amended] 15. Section 600.21, paragraph

(a)is amended by removing “§§ 600.153 and 600.242” and adding “§§ 600.153, 600.242 and 600.342” in its place. 16. Section 600.22 is amended as follows: a. In the last sentence of paragraph (a), the words “available in 10 CFR Part 1024” are removed. b. Paragraphs

(d)and (f)(1) are revised. c. Paragraphs (e), (f)(2), (f)(3) and (f)(4) are amended by removing “Board” and adding “ SPE” in its place, for every occurrence. The revisions read as follows: § 600.22 Disputes and appeals.

(d)*Right of appeal* . Except as provided in paragraph (f)(1) of this section, the final determination under paragraph

(c)of this section may be appealed to the cognizant SPE for either DOE or the National Nuclear Security Administration (NNSA). The mailing address for the DOE SPE is Office of Procurement and Assistance Management, 1000 Independence Ave., SW., Washington, DC 20585. The mailing address for the NNSA SPE is Office of Acquisition and Supply Management, 1000 Independence Ave., SW., Washington, DC 20585.

(f)*Review on appeal* .

(1)The SPE shall have no jurisdiction to review

(i)Any preaward dispute (except as provided in paragraph (f)(2)(ii) of this section), including use of any special restrictive condition pursuant to §§ 600.114, 600.212, or 600.304;

(ii)DOE denial of a request for a deviation under §§ 600.4, 600.103, 600.205, or 600.303 of this part;

(iii)DOE denial of a request for a budget revision or other change in the approved project under §§ 600.125, 600.127, 600.222, 600.230, 600.315, or 600.317 of this part or under another term or condition of the award;

(iv)Any DOE action authorized under §§ 600.162(a)(1), (2),

(3)or (5); 600.243(a)(1), (a)(3), or §§ 600.352(a)(1), (2),

(3)or

(5)for suspensions only; or §§ 600.162(a)(4), 600.243(a)(4) or 600.352(a)(4) for actions disapproving renewal applications or other requests for extension of time or additional funding for the same project when related to recipient noncompliance, or such actions authorized by program rule;

(v)Any DOE decision about an action requiring prior DOE approval under §§ 600.144, 600.236, or 600.331 of this part or under another term or condition of the award; * * * § 600.23 [Removed] 17. Section 600.23 is removed and reserved. § 600.24 [Amended] 18. Section 600.24 is amended in paragraphs (a)(3) and

(b)introductory text by removing “or § 600.243(a)” and adding “§§ 600.243(a), 600.312(g) or 600.352(a)” in its place. 19. Section 600.25 is amended in: a. Paragraph (a)(1) by removing “or § 600.243(a)” and adding “§ 600.243(a) or 600.352(a)” in its place. b. Paragraph (a)(2) by removing “§ 600.23” and adding “2 CFR Part 180 and 901” in its place. c. Paragraph

(b)is revised. d. Paragraph

(d)by removing “or §§ 600.243 through 600.244” and adding “§§ 600.243 through 600.244 or §§ 600.350 through 600.353” in its place. e. Paragraph

(f)by removing “or §§ 600.243 through 600.244” and adding “§§ 600.243 through 600.244 or §§ 600.350 through 600.353” in its place. The revision reads as follows: § 600.25 Suspension and termination.

(b)*Notification requirements* . Except as provided in §§ 600.24, 600.162(a) , 600.243(a) or 600.352(a) before suspending or terminating an award for cause, DOE shall mail to the awardee (by certified mail, return receipt requested) a separate written notice in addition to that required by § 600.24(a) at least ten days prior to the effective date of the suspension or termination. Such notice shall include, as appropriate:

(1)The factual and legal basis for the suspension or termination;

(2)The effective date or dates of the DOE action;

(3)If the action does not apply to the entire award, a description of the activities affected by the action;

(4)Instructions concerning which costs shall be allowable during the period of suspension, or instructions concerning allowable termination costs, including in either case, instructions concerning any subgrants or contracts;

(5)Instructions concerning required final reports and other closeout actions for terminated awards (see §§ 600.170 through 600.173, §§ 600.250 through 600.252 and §§ 600.350 through 600.353);

(6)A statement of the awardees' right to appeal a termination for cause pursuant to section 600.22; and

(7)The dated signature of a DOE Contracting Officer. § 600.26 [Removed] 20. Section 600.26 is removed and reserved. § 600.28 [Removed] 21. Section 600.28 is removed and reserved. § 600.29 [Amended] 22. Section 600.29 is amended as follows: a. Paragraph (b)(1), “$100,000” is removed and “$250,000” is added in its place. b. In paragraphs (b)(5) and (b)(6) “Contracting Officer” is capitalized. 23. Section 600.30 is revised to read as follows: § 600.30 Cost sharing. In addition to the requirements of §§ 600.123, 600.224, or 600.313, the following requirements apply to research, development, demonstration and commercial application activities projects:

(a)Cost sharing is required for most financial assistance awards for research, development, demonstration and commercial applications activities initiated after the enactment of the Energy Policy Act of 2005 on August 8, 2005. This requirement does not apply to:

(1)An award under the small business innovation research program or the small business technology transfer program; or

(2)A program with cost sharing requirements defined by other than Section 988 of the Energy Policy Act of 2005 including other sections of the 2005 Act and the Energy Policy Act of 1992.

(b)A cost share of at least 20 percent of the cost of the activity is required for research and development except where:

(1)A research or development activity of a basic or fundamental nature has been excluded by an appropriate officer of the Department, generally an Under Secretary; or

(2)The Secretary or delegatee has determined it is necessary and appropriate to reduce or eliminate the cost sharing requirement for a research and development activity of an applied nature.

(c)A cost share of at least 50 percent of the cost of a demonstration or commercial application program or activity is required unless the Secretary or delegatee has determined that it is necessary and appropriate to reduce the cost sharing requirements, taking into consideration any technological risk relating to the activity.

(d)Cost share shall be provided by non-Federal funds unless otherwise authorized by statute. In calculating the amount of the non-Federal contribution:

(1)Base the non-Federal contribution on total project costs, including the cost of work where funds are provided directly to a partner, consortium member or subrecipient, such as a Federally Funded Research and Development Center;

(2)Include the following costs as allowable in accordance with the applicable cost principles:

(i)Cash;

(ii)Personnel costs;

(iii)The value of a service, other resource, or third party in-kind contribution determined in accordance with the applicable Circular of the Office of Management and Budget;

(iv)Indirect costs or facilities and administrative costs; and/or

(v)Any funds received under the power program of the Tennessee Valley Authority (except to the extent that such funds are made available under an annual appropriation Act);

(3)Exclude the following costs:

(i)Revenues or royalties from the prospective operation of an activity beyond the time considered in the award;

(ii)Proceeds from the prospective sale of an asset of an activity; or

(iii)Other appropriated Federal funds.

(iv)Repayment of the Federal share of a cost-shared activity under Section 988 of the Energy Policy Act of 2005 shall not be a condition of the award. § 600.31 [Amended] 24. Section 600.31 is amended as follows: a. In paragraph (c), Contracting Officer is capitalized in all occurrences. b. In paragraph

(d)introductory text, Contracting Officer is capitalized. c. In paragraph (f)(5), Contracting Officer is capitalized. 25. Section 600.112 is revised to read as follows: § 600.112 Forms for applying for Federal assistance.

(a)An application for an award shall be on the form or in the format specified in a program rule or in the funding opportunity announcement. When a version of the Standard Form 424 is not used, DOE shall indicate whether the application is subject to review by the State under Executive Order 12372.

(b)DOE may request and the applicant shall submit the minimum budgetary information necessary to evaluate the costs of the proposed project.

(c)DOE may, subsequent to receipt of an application, request additional information from an applicant when necessary for clarification or to make informed preaward determinations.

(d)DOE may require that an application for a continuation or renewal award be made in the format or on the forms authorized by paragraphs

(a)and

(b)of this section. § 600.113 [Amended] 26. Section 600.113 is amended by removing “10 CFR 1036” and adding “2 CFR 180 and 901” in its place. § 600.117 [Removed] 27. Section 600.117 is removed and reserved. § 600.305 [Amended] 28. Section 600.305 is amended by removing “10 CFR 1036” and adding “2 CFR 180 and 901” in its place. 29. Under the authority of the Department of Energy Organization Act, Public Law 95-91, 91 Stat. 577 (42 U.S.C. 7101, *et seq.* ); E.O. 10789; Public Law 95-224, 92 Stat. 3 (41 U.S.C. 501-509), part 1024 is removed. PART 1024—[REMOVED] [FR Doc. E8-11005 Filed 5-15-08; 8:45 am] BILLING CODE 6450-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-1125; FRL-8363-6] Pesticide Inert Ingredient; Proposal to Revoke the Obsolete Tolerance Exemption for Sperm Oil AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to revoke the existing obsolete tolerance exemption under 40 CFR 180.910 for residues of sperm oil conforming to 21 CFR 172.210 as part of a broader administrative effort to correct errors and clarify permitted uses of pesticide inert ingredients in the Code of Federal Regulations. There have not been any active Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) pesticide product registrations containing this substance for many years. In addition, the sperm whale (from which sperm oil is derived) is a federally listed endangered species, and taking (or harming) this species is prohibited under the U.S. Endangered Species Act. Therefore, since this exemption corresponds to uses no longer current or registered under FIFRA in the United States, EPA is proposing to revoke the existing tolerance exemption under 40 CFR 180.910 because it is no longer necessary. DATES: Comments must be received on or before June 16, 2008. ADDRESSES: Submit your comments, identified by docket identification

(ID)number EPA-HQ-OPP-2007-1125, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is

(703)305-5805. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPP-2007-1125. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket* : All documents in the docket are listed in the docket index available in regulations.gov. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is

(703)305-5805. FOR FURTHER INFORMATION CONTACT: Karen Samek, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave, NW., Washington, DC 20460-0001; telephone number:

(703)347-8825; e-mail address: *samek.karen@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Background and Statutory Findings This proposed rule is issued pursuant to section 408(e) of FFDCA (21 U.S.C. 346a(e)). Section 408 of FFDCA authorizes the establishment of tolerances, exemptions from the requirement of a tolerance, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or tolerance exemption, food containing pesticide residues is considered to be unsafe and therefore “adulterated” under section 402(a) of the FFDCA. If food containing pesticide residues is found to be adulterated, the food may not be distributed in interstate commerce (21 U.S.C. 331(a) and 342(a)). III. What Action Is the Agency Taking EPA, acting on its own initiative, is proposing to revoke the existing obsolete tolerance exemption under 40 CFR 180.910 for residues of sperm oil conforming to 21 CFR 172.210 as part of a broader administrative effort to correct errors and clarify permitted uses of pesticide inert ingredients in the Code of Federal Regulations. It is EPA's general practice to revoke tolerances and tolerance exemptions for pesticide chemical residues (which include both active and inert ingredients) for which there are no associated active registered uses under FIFRA, or for which there are no registered products to which the tolerance or tolerance exemption applies, or for tolerances or tolerance exemptions that have been superseded. EPA has historically been concerned that retention of tolerances and tolerance exemptions that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Thus, it is EPA's policy to issue a final rule revoking those tolerances and tolerance exemptions for residues of pesticide chemicals for which there are no active registrations or uses under FIFRA. Generally, EPA will proceed with the revocation of these tolerance and tolerance exemptions on the grounds discussed in Unit II. if one of the following conditions applies: 1. Prior to EPA's issuance of a section 408(f) order requesting additional data or issuance of a section 408(d) or

(e)order revoking the tolerances or tolerance exemptions on other grounds, commenters retract the comment identifying a need for the tolerance to be retained. 2. EPA independently verifies that the tolerance or tolerance exemption is no longer needed. 3. The tolerance or tolerance exemption is not supported by data that demonstrate that the tolerance or tolerance exemption meets the requirements under FQPA. EPA believes it is appropriate to propose the revocation of the tolerance exemption associated with this inert ingredient because there are no longer any active Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) pesticide product registrations containing sperm oil. Additionally, since sperm oil is derived from the sperm whale and the sperm whale is a federally listed endangered species, taking (or harming) this species to obtain sperm oil is prohibited by the Endangered Species Act. EPA does not expect there to be existing stocks of sperm oil in the hands of users because the sperm whale has been listed as an endangered species since 1970. Also, EPA is not aware of any food or feed commodities treated with sperm oil imported into the United States. Therefore, for the reasons stated herein, EPA is proposing to revoke the existing exemption from the requirement of a tolerance for residues of sperm oil conforming to 21 CFR 172.210 under 40 CFR 180.910. IV. When Does This Action Become Effective? EPA is proposing that revocation of this tolerance exemption become effective on the day the final rule revoking this tolerance exemption is published in the **Federal Register** . If you have comments regarding whether the effective date allows sufficient time for treated commodities to clear the channels of trade, please submit comments as described under Unit I.B. Similarly, if you have comments regarding this tolerance exemption revocation or the effective date of the revocation, please submit comments as described under Unit I.B. Any commodities treated with the pesticide products containing the inert ingredient subject to this proposed rule, and in the channels of trade following the tolerance revocation, shall be subject to section 408(1)(5) of FFDCA, as established by the FQPA. Under this section, any residues of these pesticide chemicals in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that: 1. The residue is present as the result of an application or use of the pesticide chemical at a time and in a manner that was lawful under FIFRA, and 2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under an exemption from tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide chemical was applied to such food. V. Statutory and Executive Order Reviews In this proposed rule, EPA is proposing to revoke a specific tolerance exemption established under section 408(d) of the FFDCA. The Office of Management and Budget

(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed 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). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995

(UMRA)(Pub. L. 104-4). Nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA)(5 U.S.C. 601 et seq.), the Agency previously assessed whether revocations of tolerances might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. This analysis was published on December 17, 1997 (62 FR 66020), and was provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticide listed in this rule, the Agency hereby certifies that this proposed action will not have a significant economic impact on a substantial number of small entities. Specifically, as per the 1997 notice, EPA has reviewed its available data on imports and foreign pesticide usage and concludes that there is a reasonable international supply of food not treated with canceled pesticides. Furthermore, for the pesticide named in this proposed rule, the Agency knows of no extraordinary circumstances that exist as to the present proposal that would change the EPA's previous analysis. Any comments about the Agency's determination should be submitted to the EPA along with comments on the proposal, and will be addressed prior to issuing a final rule. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 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 proposed rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 9, 2000). Executive Order 3175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule. List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: May 6, 2008. Deborah McCall, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, it is proposed that 40 CFR chapter I be amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. § 180.910 [Amended] 2. Section 180.910 is amended by removing the following exemption and any associated Limits and Uses from the table: Sperm oil conforming to 21 CFR 172.210. [FR Doc. E8-10922 Filed 5-15-08; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7781] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Comments are requested on the proposed Base (1 percent annual-chance) Flood Elevations

(BFEs)and proposed BFE modifications for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the proposed regulatory flood elevations for the reach described by the downstream and upstream locations in the table below. The BFEs and modified BFEs are a part of the floodplain management measures that the community is required either to adopt or show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, these elevations, once finalized, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents in those buildings. DATES: Comments are to be submitted on or before August 14, 2008. ADDRESSES: The corresponding preliminary Flood Insurance Rate Map

(FIRM)for the proposed BFEs for each community are available for inspection at the community's map repository. The respective addresses are listed in the table below. You may submit comments, identified by Docket No. FEMA-B-7781, to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,

(202)646-3151, or (e-mail) *bill.blanton@dhs.gov* . FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,

(202)646-3151, or (e-mail) *bill.blanton@dhs.gov* . SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency

(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent. *Administrative Procedure Act Statement* . This matter is not a rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C. 553. FEMA publishes flood elevation determinations for notice and comment; however, they are governed by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of 1968, 42 U.S.C. 4001 *et seq.* , and do not fall under the APA. *National Environmental Policy Act* . This proposed 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. *Executive Order 12866, Regulatory Planning and Review* . This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended. *Executive Order 13132, Federalism* . This proposed rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform* . This proposed 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 proposed to be 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. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation ** * Elevation in feet

(NGVD)+ Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Leon County, Florida, and Incorporated Areas East Drainage Ditch Approximately 400 feet upstream of South Blair Stone Road None +90 City of Tallahassee. Approximately 1,000 feet upstream of Paul Russell Road None +94 Indianhead Branch 2 Just downstream of Putnam Drive +59 +63 City of Tallahassee. Just upstream of East Magnolia Drive None +67 Northeast Drainage Ditch Tributary 1 Approximately 200 feet upstream of the confluence of Northeast Drainage Ditch +90 +91 City of Tallahassee. Just downstream of Lonnbladh Road +90 +95 Northeast Drainage Ditch Tributary 2 Approximately 450 feet upstream of the confluence of Northeast Drainage Ditch +65 +60 City of Tallahassee. Just upstream of U.S. Route 319 +93 +95 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Tallahassee Maps are available for inspection at Tallahassee City Hall, 300 South Adams Street, Tallahassee, FL. Bannock County, Idaho, and Incorporated Areas Rapid Creek Just upstream of Interstate Highway 15 +4544 +4541 Unincorporated Areas of Bannock County, City of Inkom. At Private Road approximately 400 feet downstream of Hoot Owl Road +5062 +5060 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Inkom Maps are available for inspection at 365 North Rapid Creek Road, Inkom, ID 83245. Unincorporated Areas of Bannock County Maps are available for inspection at 130 North 6th Avenue, Suite C, Pocatello, ID 83201. Butler County, Kansas, and Incorporated Areas Walnut River Approximately 850 feet downstream of SW 220th Street None *1181 City of Douglas. Approximately 1000 feet upstream of SW 210th Street None *1190 Whitewater River Approximately 1000 feet upstream of State Highway 254 None *1254 City of Towanda. Approximately 1320 feet upstream of State Highway 254 None *1264 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Douglass Maps are available for inspection at City Hall, 322 S. Forrest, Douglass, KS 67039. City of Towanda Maps are available for inspection at City Hall, 110 S. 3rd Street, Towanda, KS 67114. Casey County, Kentucky, and Incorporated Areas Green River Approximately 4300 feet downstream of confluence with Highway 49 Tributary None +793 Unincorporated Areas of Casey County. Approximately 900 feet upstream of KY-817 None +808 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Casey County Maps are available for inspection at 625 Campbellsville Street, Liberty, KY 42539. Middlesex County, Massachusetts, and Incorporated Areas Aberjona River At outlet to Lower Mystic Lake +8 +7 Town of Arlington, City of Medford, City of Woburn, Town of Reading, Town of Winchester. At divergence of Aberjona River—North Spur +84 +83 Aberjona River—North Spur At confluence with Aberjona River +62 +64 Town of Reading, City of Woburn, Town of Wilmington. Approximately 300 feet upstream of Willow Street +84 +83 Alewife Brook (Little River) At confluence with Mystic River +6 +7 Town of Arlington, City of Somerville. Approximately 320 feet downstream of Henderson Street +6 +7 Assabet River Entire reach within Town of Hudson None +181 Town of Hudson. Assabet River At upstream side of Interstate 495 None +213 City of Marlborough. Approximately 800 feet upstream of Interstate 495 None +214 Beaver Brook 1 Approximately 4,040 feet upstream of Beaver Street None +54 Town of Belmont. Approximately 5,765 feet upstream of Beaver Street None +75 Beaver Brook 3 Approximately 1,000 feet downstream of Pleasant Street +75 +71 Town of Dracut. At Pleasant Street +75 +71 Butter Brook Approximately 1,600 feet upstream of Main Street +173 +176 Town of Westford. Approximately 2,100 feet downstream of Old Road +175 +176 Concord River Approximately 450 feet upstream of Interstate Route 495 East +106 +104 Town of Billerica, Town of Chelmsford, Town of Tewksbury. Approximately 2,280 feet upstream of Interstate Route 495 East +106 +105 Cummings Brook At confluence with Shakers Glen Brook +46 +47 City of Woburn. Approximately 130 feet upstream of Winn Street +101 +102 Fort Meadow Brook At confluence with Assabet River None +181 Town of Hudson. Approximately 100 feet downstream of Main Street +180 +181 Fort Meadow Reservoir Entire reach within City of Marlborough None +262 City of Marlborough. Hales Brook Approximately 1,350 feet east of Industrial Avenue East and Lowell Connector intersection—Backwater area +103 +102 City of Lowell. At confluence with River Meadow Brook +103 +102 Approximately 1,500 feet upstream of Industrial Avenue East +103 +102 Hales Brook Approximately 1,350 feet east of Industrial Avenue East and Lowell Connector intersection—Backwater area None +102 Town of Chelmsford. Approximately 2,200 feet downstream of Interstate Route 495 +101 +102 Approximately 200 feet downstream of Interstate Route 495 +101 +102 Halls Brook At confluence with Aberjona River +50 +54 City of Woburn. Approximately 220 feet upstream of Merrimac Street +106 +95 Horn Pond Brook/Fowle Brook At confluence with Aberjona River +20 +23 City of Woburn, Town of Winchester. At confluence with Shakers Glen Brook +46 +47 Little Brook At confluence with Cummings Brook +68 +67 City of Woburn. Approximately 400 feet upstream of Bedford Road +103 +95 Lubbers Brook Approximately 1,800 feet downstream of Cook Street None +102 Town of Wilmington. Approximately 3,090 feet upstream of Cook Street None +103 Marginal Brook Entire reach within Town of Tewksbury None +126 Town of Tewksbury. Merrimack River Approximately 6,000 feet upstream of County boundary +55 +57 Town of Chelmsford, Town of Dracut, Town of Tewksbury, Town of Tyngsborough. Approximately 10,730 feet downstream of Tyngsborough Bridge +103 +104 Mill Brook Approximately 315 feet downstream of confluence with Tributary to Mill Brook None +119 Town of Bedford. Approximately 315 feet upstream of confluence with Tributary to Mill Brook None +119 Mill Brook 3 Upstream side of Mystic Valley Parkway +11 +7 Town of Arlington, Town of Lexington. Approximately 70 feet upstream of Boston and Maine Railroad +173 +168 Mystic River Upstream side of Mystic Valley Parkway—Route 16 +4 +5 Town of Arlington, City of Medford. At outlet to Lower Mystic Lake +8 +7 Nonesuch Pond Entire reach within Town of Natick None +174 Town of Natick. North Lexington Brook Approximately 400 feet upstream of confluence with Shawsheen River +115 +116 Town of Lexington. At Boston and Maine Railroad +116 +117 Pages Brook Approximately 250 feet northwest of Larsen Lane and Outlook Road intersection—Backwater area None +119 Town of Billerica. Peppermint Brook At confluence with Beaver Brook 3 +75 +71 Town of Dracut. Approximately 50 feet downstream of State Route 113 +75 +74 Richardson Brook At confluence with Merrimack River +59 +57 Town of Dracut. Downstream side of State Route 10 Dam +59 +58 Schneider Brook At confluence with Aberjona River +42 +45 City of Woburn. Approximately 880 feet upstream of Forbes Street +83 +84 Shakers Glen Brook At confluence with Fowle Brook +46 +47 City of Woburn. At Russell Street +63 +62 Shawsheen River At upstream side of Boston and Maine Railroad +90 +91 Town of Wilmington. Approximately 1.9 miles downstream of Boston Road (State Road 3A) +93 +97 Shawsheen River Approximately 2,125 feet upstream of Bridge Street +116 +113 Town of Lexington. Approximately 300 feet upstream of Summer Street None +116 Snake Brook Approximately 2,420 feet downstream of Main Street None +138 Town of Natick. Approximately 2,760 feet downstream of Commonwealth Avenue None +147 Sweetwater Brook At confluence with Aberjona River +35 +36 City of Woburn, Town of Stoneham. Approximately 120 feet upstream of Lindenwood Road +65 +63 Town Line Brook Approximately 370 feet upstream of Lynn Street None +8 City of Everett. Approximately 1,650 feet upstream of Lynn Street None +8 Approximately 1,850 feet downstream of County boundary None +8 Trull Brook At confluence with Merrimack River +55 +57 Town of Tewksbury. Approximately 100 feet upstream of Golf Course Bridge +55 +57 Valley Pond Entire shoreline within community None +175 Town of Weston. Wellington Brook Approximately 600 feet upstream of confluence with Alewife Brook (Little River) +8 +7 City of Cambridge, Town of Belmont. Approximately 1,700 feet upstream of Concord Avenue +22 +20 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Cambridge Maps are available for inspection at City of Cambridge Department of Public Works, 795 Massachusetts Avenue, Cambridge, MA. City of Everett Maps are available for inspection at Everett City Hall, Office of the City Engineer, 484 Broadway Street, Room 26, Everett, MA. City of Lowell Maps are available for inspection at Lowell City Hall, 375 Merrimack Street, Lowell, MA. City of Marlborough Maps are available for inspection at Marlborough City Hall, Office of Inspectional Services, 140 Main Street, Marlborough, MA. City of Medford Maps are available for inspection at Medford City Hall, Engineering Division, 85 George P. Hassett Drive, Room 300, Medford, MA. City of Somerville Maps are available for inspection at Somerville City Hall, Public Works Department, 93 Highland Avenue, Somerville, MA. City of Woburn Maps are available for inspection at Woburn City Hall, Engineering Department, 10 Common Street, Woburn, MA. Town of Arlington Maps are available for inspection at Arlington Town Hall, 730 Massachusetts Avenue, Arlington, MA. Town of Bedford Maps are available for inspection at Bedford Town Hall, 10 Mudge Way, Bedford, MA. Town of Belmont Maps are available for inspection at Town of Belmont Community Development Office, 19 Moore Street, Belmont, MA. Town of Billerica Maps are available for inspection at Town of Billerica Building Department, 365 Boston Road, Billerica, MA. Town of Chelmsford Maps are available for inspection at Town of Chelmsford Public Works Department, 50 Billerica Road, Chelmsford, MA. Town of Dracut Maps are available for inspection at Dracut Town Hall, 11 Springpark Avenue, Dracut, MA. Town of Hudson Maps are available for inspection at Town of Hudson Inspections Department, 78 Main Street, Hudson, MA. Town of Lexington Maps are available for inspection at Town of Lexington Engineering Department, 1625 Massachusetts Avenue, Lexington, MA. Town of Natick Maps are available for inspection at Natick Town Hall, 13 East Central Street, Natick, MA. Town of Reading Maps are available for inspection at Reading Town Hall, Building Department, 16 Lowell Street, Reading, MA. Town of Stoneham Maps are available for inspection at Town of Stoneham Department of Public Works, 16 Pine Street, Stoneham, MA. Town of Tewksbury Maps are available for inspection at Tewksbury Town Hall, Building Department, 1009 Main Street, Tewksbury, MA. Town of Tyngsborough Maps are available for inspection at Tyngsborough Town Hall, Building Department, 25 Bryants Lane, Tyngsborough, MA. Town of Westford Maps are available for inspection at Westford Town Hall, Building Department, 55 Main Street, Westford, MA. Town of Weston Maps are available for inspection at Weston Town Hall, 11 Town House Road, Weston, MA. Town of Wilmington Maps are available for inspection at Wilmington Town Hall, 121 Glen Road, Wilmington, MA. Town of Winchester Maps are available for inspection at Town of Winchester Engineer's Office, 71 Mt. Vernon Street, Winchester, MA. Flooding source(s) Location of referenced elevation ** * Elevation in meters

(NGVD)+ Elevation in meters

(NAVD)# Depth in meters above ground ‸ Elevation in meters

(MSL)Effective Modified Communities affected Commonwealth of Puerto Rico County, Puerto Rico and Incorporated Areas Rio Bairoa At confluence with Rio Grande de Loiza Reach 2 ‸ 51.3 ‸ 52 Commonwealth of Puerto Rico. Approximately 290 meters upstream of Calle Gardena ‸ 90.3 ‸ 90.1 Rio Caguitas At confluence of Rio Grande de Loiza Reach 2 ‸ 52.1 ‸ 52 Commonwealth of Puerto Rico. Approximately 1,830 meters upstream of Calle Canaboncito None ‸ 81.2 Rio Grande de Loiza Reach 2 Approximately 3,640 meters downstream of PR Highway 30 None ‸ 50.8 Commonwealth of Puerto Rico. Approximately 2,700 meters upstream of Carretera 183 None ‸ 96.2 Rio Gurabo At confluence with Rio Grande de Loiza Reach 2 ‸ 49.6 ‸ 51.3 Commonwealth of Puerto Rico. Approximately 1,800 meters upstream of Carretera 31 None ‸ 71.4 Rio Turabo At confluence with Rio Grande de Loiza Reach 2 ‸ 59.1 ‸ 59.7 Commonwealth of Puerto Rico. Approximately 7,500 meters upstream of Calle Georgetti None ‸ 105.8 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ‸ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Commonwealth of Puerto Rico Maps are available for inspection at Puerto Rico Planning Board, North Building, 16th Floor, De Diego Avenue, Stop 22, Santurce, San Juan, PR. Flooding source(s) Location of referenced elevation ** * Elevation in feet

(NGVD)+ Elevation in feet

(NAVD)# Depth in feet above ground Effective Modified Communities affected Minnehaha County, South Dakota, and Incorporated Areas Big Sioux River Approximately 7120 feet downstream from South Dakota Highway 42 None +1286 Unincorporated Areas of Minnehaha County. Approximately 1000 feet downstream from South Dakota Highway 42 None +1289 Big Sioux River Approximately 2500 feet downstream from Burlington Northern Santa Fe Railroad +1306 +1305 City of Sioux Falls, Unincorporated Areas of Minnehaha County. Approximately 1000 feet downstream from West 60th Street +1432 +1431 Cherry Creek Approximately 70 feet downstream from South Sertoma Avenue +1435 +1434 City of Sioux Falls, Unincorporated Areas of Minnehaha County. Approximately 1000 feet upstream from East 266th Street None +1458 Skunk Creek 2750 feet downstream from Interstate 29 +1417 +1422 City of Sioux Falls, Unincorporated Areas of Minnehaha County. Approximately 50 feet downstream from South 467th Avenue None +1459 Willow Creek Approximately 1130 feet upstream from North Lamesa Drive None +1438 Unincorporated Areas of Minnehaha County, City of Sioux Falls. Approximately 1300 feet upstream from Highway 38 None +1475 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Sioux Falls Maps are available for inspection at 224 West 9th Street, P.O. Box 7402, Sioux Falls, SD 57117-7402. Unincorporated Areas of Minnehaha County Maps are available for inspection at County Administration Building, 415 N. Dakota Avenue, Sioux Falls, SD 57106. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: May 9, 2008. Michael K. Buckley, Deputy Assistant Administrator for Mitigation, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-10933 Filed 5-15-08; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket Nos. 07-294; 06-121; 02-277; 04-228, MM Docket Nos. 01-235; 01-317; 00-244; FCC 07-217] In the Matter of Promoting Diversification of Ownership in the Broadcasting Services AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: This document seeks comment on various proposals to increase participation in the broadcasting industry by new entrants and small businesses, especially minority- and women-owned businesses, with the goal of promoting innovation, diversity of ownership and viewpoints, spectrum efficiency, and competition in media markets. DATES: Comments for this proceeding are due on or before July 15, 2008. Reply comments are due on or before August 14, 2008. ADDRESSES: You may submit comments, identified by MB Docket No. 07-294; FCC 07-217, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/.* Follow the instructions for submitting comments. • *Mail:* 445 12th Street, SW., Washington, DC 20554, with a copy to the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone: 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Mania Baghdadi, 202-418-2133. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's *Report and Order and Third Further Notice of Proposed Rulemaking* (the “ *Notice* ”) in MB Docket Nos. 07-294; 06-121; 02-277; 04-228, MM Docket Nos. 01-235; 01-317; 00-244; FCC 07-217, adopted December 18, 2007, and released March 5, 2008. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( *http://www.fcc.gov/cgb/ecfs* ). The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording and Braille), send an e-mail to *fcc504@fcc.gov* or call the FCC's Consumer and Governmental Affairs Bureau at

(202)418-0530 (voice)

(202)418-0432 (TTY). Summary of the Notice of Proposed Rulemaking 1. It has long been a basic tenet of national communications policy that the widest dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. By broadening participation in the broadcast industry, the Commission seeks to strengthen the diverse and robust marketplace of ideas that is essential to our democracy. As the Supreme Court has recognized, “Safeguarding the public's right to receive a diversity of views and information over the airwaves is * * * an integral component of the FCC's mission.” *Metro Broadcasting, Inc.* v. *FCC,* 497 U.S. 547, 567 (1990), overruled in part on other grounds in *Adarand Constructors Inc.* v. *Pena,* 515 U.S. 200, 227

(1995)(” *Adarand* ”). Beyond fostering viewpoint diversity, the Commission also believes that taking steps to facilitate the entry of new participants into the broadcasting industry may promote innovation in the field because in many cases, the most potent sources of innovation often arise not from incumbents but from new entrants. The Commission believes that this may be particularly true with respect to small businesses, including those owned by minorities and women. Expanding the pool of potential competitors in media markets to include such businesses should bring new competitive strategies and approaches by broadcast station owners in ways that benefit consumers in those markets. 2. The *Notice* invites comment on several ways to increase participation in the broadcasting industry by new entrants and small businesses, especially minority- and women-owned businesses, with the goal of promoting innovation, diversity of ownership and viewpoints, spectrum efficiency, and competition in media markets. Specifically, the *Notice* invites comment on the following proposals: 3. *Definition of Socially and Economically Disadvantaged Businesses.* The Commission's *Report and Order and Third Further Notice of Proposed Rulemaking* (the “ *Order* ”) in MB Docket Nos. 07-294; 06-121; 02-277; 04-228; MM Docket Nos. 01-235; 01-317; 00-244; FCC 07-217, adopted December 18, 2007, and released March 5, 2008 defines the class of entities benefiting from the rule and policy changes set forth in the *Order* as “eligible entities,” using the SBA definition of small businesses. The Commission seeks comment on whether it can or should expand that definition. Specifically, the *Notice* invites comment on whether to use a race-conscious definition of socially and economically disadvantaged business

(SDB)to define the relevant class of companies. For example, to qualify for participation in Small Business Administration's Small Disadvantaged Business program, a small business must be at least 51 percent owned and controlled by a socially and economically disadvantaged individual or individuals. Under the program, African Americans, Hispanic Americans, Asian Pacific Americans, Subcontinent Pacific Americans, and Native Americans are presumed to qualify, and other individuals can qualify if they can show by a preponderance of the evidence that they are disadvantaged. Because any race conscious measure the Commission might adopt to promote minority ownership would be subject to strict scrutiny under the equal protection component of the Due Process Clause of the Fifth Amendment, parties who contend that a race-conscious classification would be the best approach, or indeed even a permissible approach, to encourage ownership diversity and new entry must explain specifically, using empirical data and legal analysis, how such a classification would not just be tailored, but narrowly tailored, to advance a governmental interest that is not simply important, but compelling. 4. *Other Definitions.* The *Notice* likewise seeks comment on a proposal for “full file” review, i.e., a race-neutral, individualized review, similar to that used by Michigan, California, and Texas state university admission departments following the passage of state initiatives and court decisions banning affirmative action. Under this proposal, each applicant would demonstrate (to the satisfaction of an independent, politically insulated professional entity, perhaps modeled after the Universal Service Board) that it has overcome significant social and economic disadvantages, the overcoming of which would be predictive of success in a challenging industry and of the promotion of diversity of information and perspectives and satisfaction of unmet needs in the industry. This disadvantage often, but not necessarily, would be related to race or gender discrimination or their present effects. Hypothetical applicants who might benefit from “full file” review include an applicant injured in military service in Iraq who later completed a leadership training program; a rural applicant who put herself through college and successfully ran a previously-bankrupt AM station; and a Spanish language radio company owner who succeeded despite advertiser resistance to program language and format. 5. The *Notice* seeks comment on the “full file” proposal generally and poses a number of specific questions regarding the proposal. Would the grant of broadcast licenses to applicants who have overcome social and economic disadvantages likely result in greater diversity of broadcast information and viewpoints? How should “full file review” be structured so that it is race-neutral and does not trigger strict scrutiny? Can the “full file review” framework applied and upheld in the context of university admissions be applied to the media industry in an effective manner to foster diversity of viewpoints without involving the Commission in content-based decisions that could raise First Amendment concerns? How should the Commission or an “independent, politically insulated professional entity” assess whether an applicant has overcome social and economic disadvantage and whether granting the application would increase diversity of viewpoints? How could the concept of “full file” review, which in the higher education context is used to compare candidates competing for a limited number of admissions slots, be applied in an administratively feasible manner to a situation where applicants will not be compared to each other (because mutually exclusive license applications are resolved through an auction) but instead will be evaluated to see if they meet a specified standard? Should an applicant bear the burden of proving specifically that it would contribute to diversity of viewpoints as a result of having overcome these disadvantages? When the applicant is a company, which individuals would the Commission evaluate to determine if the company meets the relevant standard under “full file review”? Would a determination by an independent board be advisory to the Commission? Would an affirmative determination qualify the entity as an eligible entity for all future transactions or for a specified period of time or would it have to seek a new determination for each transaction? How would “full file” review or a similar standard compare to an “eligible entity” or SDB standard in promoting viewpoint and/or ownership diversity? Should the Commission substitute the “full file review” approach for the “eligible entity” approach until it can adopt an SDB standard or should the Commission adopt it in lieu of an SDB standard? The Commission also invites commenters to propose any alternative definition of “eligible entity” that they believe would better advance our goals of promoting ownership diversity and new entry. With respect to any proposed definition that is race conscious, commenters should address the constitutionality of such definition. 6. *Share-Time Proposals.* The *Notice* also invites comment on a proposal that the Commission afford FM licensees that broadcast in HD using IBOC technology the voluntary option of assigning the right to operate an HD radio stream to an SDB. As proposed by a commenter, the SDB operating the HD radio stream would receive a license under the Commission's share-time rules. The commenter further proposes that the Commission use its share-time procedures to permit the bifurcation of a single-channel, analog FM station into an “Entertainment Station” and a “Free Speech Station.” Such a “Free Speech Station” would be independently owned by an SDB, have at least 20 non-nighttime hours per week of airtime, and be primarily devoted to non-entertainment programming. The Commission seeks specific comment on these proposals. In particular, the Commission seeks comment on the extent to which, if the SDB (or eligible entity) becomes a Commission licensee, these proposals may provide the non-SDB entity a way to circumvent FCC ownership restrictions. 7. *Retention On Air of AM Expanded Band Owners' Stations if One of the Stations Is Sold to an Eligible Entity.* In 1987, the Commission began a comprehensive review of numerous technical, legal, and policy issues relating to AM broadcasting in an effort to identify and address its most pressing problems. The allotment of additional spectrum (1605-1705 kHz) for broadcasting provided the Commission with a “unique opportunity” to address these problems, most importantly the channel congestion and interference that had significantly degraded the technical quality of the service. Accordingly, the Commission limited initial applications for expanded band authorizations to existing AM broadcasters in the standard band and gave the highest priority to those fulltime stations that would most reduce congestion and interference by moving their operations to one of the new channels. To ensure that this process achieved its intended goals, the Commission further provided that the license for an expanded band station would issue conditioned upon the surrender of one of the paired frequencies, preferably the standard band frequency, following a five-year transition period during which dual operations would be permissible. On reconsideration, the Commission reordered its priorities in light of Congress's recent amendment of the Act to add section 331(b) and gave first priority to a special class of four AM stations—those daytime-only stations licensed to serve communities with populations of more than 100,000 persons that lacked a fulltime aural service. A total of 54 expanded band stations were licensed through this process. Two construction permit applications and one license application remain pending. To date, 19 licensees have surrendered their lower band licenses, and one licensee has surrendered its expanded band license at the end of each of these licensees' five-year dual-operating authority period. In March 2006, eleven licensees and four public interest groups petitioned the Commission to waive the surrender requirement in order to allow the transfer of one of the stations to a recognized small business, or its retention by the licensee if the licensee is a small business. 8. The Commission has received comments arguing that the technical benefits that the Commission anticipated from the surrender of lower band AM licenses are now outweighed by continued service to the listening public. Commenters claim that “numerous” AM licensees have specifically targeted the programming on the lower band paired station to serve the needs of minorities and niche audiences. They propose that the Commission extend the dual operating period authorization and the temporary exemption of the expanded band authorization for multiple ownership purposes. As proposed, licensees would be permitted, prior to a specified disposition date, to assign or transfer control of one the paired AM stations to a qualifying “small business” as that term applies to radio broadcasters in the Small Business Administration's Regulations. Under the proposal, the consideration that a licensee could receive for one of its paired AM stations could not exceed 75 percent of the station's fair market value. Further, in the event that the licensee is itself a small business, it would be permitted to retain permanently both authorizations. The Commission seeks comment on this proposal. In particular, the Commission seeks comment on how to properly balance the competing goals of improving the technical viability of the AM service and promoting ownership diversity. In the event that the Commission adopts this proposal, the Commission also seeks comment on the length of time licensees operating paired stations should be given to dispose of one station to a qualifying small business. The Commission tentatively concludes that any licensee, that itself is not a qualifying small business and that fails to consummate the sale of one station by the disposition date must surrender one of the two licenses by the disposition date. Moreover, the Commission tentatively concludes that in the event that a licensee fails to take any action by the disposition date, the lower band station shall automatically expire on that date. The Commission seeks comment on these procedures. 9. In a related matter, the Commission seeks comment on a proposal to reinstate 20 licenses that were unconditionally surrendered by licensees in accordance with the terms of their authorizations. The Commission notes that subsequent licensing activity may preclude reinstatement and that certain circumstances, such as the sale of a former transmitter site and station equipment, may make resumption of operations by a formerly paired station infeasible or impossible. The Commission seeks comment on whether the Commission should accept construction permit applications from these licensees and the technical standards that the Commission should use to process these applications. The Commission seeks comment on whether the acceptance of such applications without providing an opportunity for competing applications complies with *Ashbacker* principles, *Ashbacker Radio Corp.* v. *FCC,* 326 U.S. 327 (1945). Lastly, the Commission seeks comment on whether a successor licensee should be permitted to seek reinstatement of a surrendered license. 10. *Modifications to FCC Form 323.* As part of the Commission's quadrennial media ownership review, several commenters and FCC study authors expressed concern about the Commission's data collection process and have proposed revisions to FCC Form 323 to enhance its utility in measuring current levels of minority and female broadcast ownership. FCC Form 323 is filed by commercial AM, FM and television stations at two-year intervals on the anniversary date of the station's renewal application filing date. Partnerships composed entirely of natural persons and sole proprietorships are not required to file the FCC Form 323 on a biennial basis. In addition to gender information, the racial/ethnic origin categories include American or Alaska Native, Asian, Black or African American, Hispanic or Latino, Native Hawaiian or Other Pacific Islander. The Commission periodically posts its compilation of data derived from these forms on its website. Commenters have criticized the form as an inadequate basis upon which to develop effective minority ownership policies, regardless of whether such policies are race conscious, and note that the authors of several media ownership studies indicated that the Commission's most recent research study on minority ownership is “not sufficient” to validate a race conscious initiative. Other commenters state that problems with the Form 323 derive from the process the Commission uses to automate and cull the data from the forms. Areas of concern include the filing of multiple forms for a single station; the practice of some filers of providing racial/gender information in a separate attachment to the form; the lack of questions regarding gender/racial classifications on the Form 323-E, which is used by noncommercial educational stations; and filers who write “no change—info on file” as opposed to electronically validating or completing the information previously submitted, including race, gender, and ethnicity data. The *Notice* seeks initial comment on issues related to the Commission's collection of information on the racial and gender identity of radio and television licensees. The Commission tentatively concludes that it should make changes to Form 323 to increase the accuracy of the data collected and the potential uses for the form. Sole proprietorships and partnerships composed entirely of natural persons have not routinely been required to complete Form 323. The Commission solicits input from the public on whether expansion of the scope of parties required to file the biennial ownership report would enhance the race, gender, and ethnicity data collection. Further, the Commission seeks comment on whether it should establish a uniform filing date for all radio and television station licensees and eliminate the current practice of permitting licensees to file on the anniversary of their renewal date. Would a single filing date pose a burden on licensees? What are the benefits of a single filing date requirement? Would the data collection be improved with such a change? Under current procedures, if the licensee or permittee is directly or indirectly controlled by another entity, or if another entity has an attributable interest in such licensee or permittee, a separate Form 323 must be submitted for such entity. Does this practice make the race, gender and ethnicity data more, or less, reliable? What other changes to Form 323 would make use of the data more reliable? Are there reasons that justify maintaining the current collection process, such as streamlining, paperwork burdens, or administrative efficiencies? The Commission is likewise concerned about the accuracy of data submitted by licensees, as this information may form the basis for Commission policy and rulemaking. Should the Commission adopt a new form to more accurately collect information from licensees on race, gender, and ethnicity, and delete these questions from the Form 323? The Commission requests comments addressing whether the Commission should conduct audits to assess the accuracy of the information filed in the annual ownership report. Would the data collection be enhanced if the Commission imposed an audit process? If so, what type of audit should the Commission conduct? Should the Commission periodically audit a random sample of filers? How often should the audit be conducted? What penalties should be imposed for licensees that file inaccurate information on Form 323? 11. *Structural Rule Waivers for Creating Incubator Programs.* The *Notice* seeks comment on a proposal advanced by one of the commenting parties advocating the grant of a structural rule waiver for parties that create and maintain an incubator program for SDBs. The proposed “Trial Incubation Plan” would operate for two years, at which point the Commission would analyze its effects before renewing or expanding it. The Trial Incubation Plan would apply only to the local radio ownership rule in large markets and would permit the incubating party to acquire only one additional station beyond the applicable local cap, including any same-service subcap. That additional station must be in the same service (AM or FM) and in the same market, or a market of approximately the same size, as the newly SDB-controlled station. Furthermore, the proposal would require that the two transactions be contingent, such that the SDB transaction would close prior to or simultaneously with the incubating party's transaction. The Commission seeks comment on the proposal. 12. *Opening FM Spectrum for New Entrants.* The *Notice* seeks comment on a proposal that FM stations be permitted to change their community of license to any community located in the same radio market, provided that “if the community of license being vacated (the “Original Community”) has no other full power AM or FM or LPFM station licensed to it and which originates local programming for at least 15% of its airtime (a “Local Service LPFM”), the licensee vacating the Original Community must underwrite the cost of licensing, construction and one full year of operation of a new Local Service LPFM to be licensed to the Original Community.” The Commission seeks comment on this proposal. 13. *Must-Carry for Class A Television Stations.* Commenters propose that the Commission actively support cable must-carry legislation for Class A stations. The Commission agrees that cable carriage of Class A television stations could promote both programming diversity and localism, given that all such stations are required to originate local content, and seeks comment on whether the FCC has authority under the Act to adopt rules requiring such carriage. 14. *Re-allocation of TV Channels 5 and 6 for FM Service.* Certain commenters have urged the Commission to give a “hard look” to a proposal that the Commission re-allocate TV Channels 5 and 6 for FM broadcasting, thereby substantially expanding the existing FM band. The Commission agrees that the proposal could yield tremendous opportunities for new entrants, and the *Notice* seeks comment on it. 15. *Other Proposals.* The *Notice* further invites comment on a number of proposals advanced by the National Association of Black Owned Broadcasters (“NABOB”) and Rainbow/PUSH in their comments submitted January 2, 2003 in the course of the 2002 Biennial Review proceeding. The Commission believes that the record with respect to these proposals should be refreshed. Specifically, NABOB and Rainbow/PUSH propose that the Commission:

(1)Examine assignment and transfer applications to discern the potential impact of the proposed transaction on minority ownership;

(2)decline to grant temporary waivers of the local ownership rules to parties proposing a transaction that would create station combinations exceeding the ownership caps;

(3)treat local marketing agreements as attributable interests; and

(4)allow minorities to own station combinations equal to the largest combination in a market to counterbalance the economic impact of grandfathered holdings. The *Notice* seeks comment on these proposals. In particular, the Commission asks parties to address the Commission's authority to enact the proposals, the extent to which the proposals would apply, and whether the proposals contradict any of the proposals the FCC adopted in the * Order.* Notice of Proposed Rulemaking Initial Regulatory Flexibility Act Analysis 16. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (“IRFA”), set forth in an Appendix to the *Notice,* concerning the possible significant economic impact on small entities by the policies and rules proposed in the Notice. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing procedures and deadlines for comments and reply comments in response to the *Notice,* and should have a distinct heading designating them as responses to the IRFA. The Commission will send a copy of the *Notice,* including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). 5 U.S.C. 603(a). In addition, the *Notice* and IRFA (or summaries thereof) are here published in the **Federal Register** . A. Need for, and Objective of, the Proposed Rules 17. The *Notice* invites comment on several ways to increase participation in the broadcasting industry by new entrants and small businesses, especially minority- and women-owned businesses, with the goal of promoting innovation, diversity of ownership and viewpoints, spectrum efficiency, and competition in media markets. The *Notice* first invites comment on how to define the class of eligible entities that will be entitled to benefit from the Commission's proposals. The *Notice* then invites comment on a range of proposals to stimulate ownership diversity, including permitting share-time arrangements between FM licensees and SDBs; extension of the dual-operating period authorization and temporary exemption of expanded-band authorization in the AM radio context; and reinstatement of 20 AM licenses that were voluntarily surrendered. In addition, the Commission seeks comment on proposed revisions to FCC Form 323 to enhance the ability of the Commission to collect information on the racial and gender identity of radio and television licensees. The *Notice* further requests comment on a proposal to grant structural rule waivers for parties that create and maintain incubator programs for SDBs and on a proposal that the FCC permit FM licensees to change their station community of license to any community located in the same radio market under certain conditions, and the Commission seeks input on whether the Commission has authority to require cable operators to carry Class A television stations and whether the Commission should reallocate TV Channels 5 and 6 for FM broadcasting. Finally, the Commission requests refreshed comments on certain proposals advanced by NABOB and the Rainbow/PUSH Coalition during the 2002 Biennial Review of the Commission's media ownership rules. B. Legal Basis 18. This *Notice* is adopted pursuant to sections 1, 2(a), 3, 4(i, j), 257, 301, 303(r), 307-10, and 614-15 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 153, 154(i, j), 257, 301, 303(r), 307-10, 534-35. C. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply 19. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental entity” under section 3 of the Small Business Act. In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which:

(1)Is independently owned and operated;

(2)is not dominant in its field of operation; and

(3)satisfies any additional criteria established by the SBA. 20. *Television Broadcasting.* In this context, the application of the statutory definition to television stations is of concern. The Small Business Administration defines a television broadcasting station that has no more than $13 million in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of the BIA Financial Network, Inc. Media Access Pro Television Database as of December 7, 2007, about 825 (66 percent) of the 1,250 commercial television stations in the United States have revenues of $13 million or less. However, in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the attribution rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 21. An element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is unable at this time and in this context to define or quantify the criteria that would establish whether a specific television station is dominant in its market of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any television stations from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. It is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 22. *Radio Broadcasting.* The Small Business Administration defines a radio broadcasting entity that has $6.5 million or less in annual receipts as a small business. Business concerns included in this industry are those “primarily engaged in broadcasting aural programs by radio to the public.” According to Commission staff review of the BIA Financial Network, Inc. Media Access Radio Analyzer Database as of December 7, 2007, about 10,500 (95 percent) of 11,050 commercial radio stations in the United States have revenues of $6.5 million or less. We note, however, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by any changes to the ownership rules, because the revenue figures on which this estimate is based do not include or aggregate revenues from affiliated companies. 23. In this context, the application of the statutory definition to radio stations is of concern. An element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time and in this context to define or quantify the criteria that would establish whether a specific radio station is dominant in its field of operation. Accordingly, the foregoing estimate of small businesses to which the rules may apply does not exclude any radio station from the definition of a small business on this basis and is therefore over-inclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities, and our estimates of small businesses to which they apply may be over-inclusive to this extent. 24. *Class A TV, LPTV, and TV translator stations.* The rules and policies adopted herein may also apply to licensees of Class A TV stations, low power television (“LPTV”) stations, and TV translator stations, as well as to potential licensees in these television services. The same SBA definition that applies to television broadcast licensees would apply to these stations. The SBA defines a television broadcast station as a small business if such station has no more than $13.0 million in annual receipts. Currently, there are approximately 567 licensed Class A stations, 2,227 licensed LPTV stations, and 4,518 licensed TV translators. Given the nature of these services, we will presume that all of these licensees qualify as small entities under the SBA definition. We note, however, that under the SBA's definition, revenue of affiliates that are not LPTV stations should be aggregated with the LPTV station revenues in determining whether a concern is small. Our estimate may thus overstate the number of small entities, since the revenue figure on which it is based does not include or aggregate revenues from non-LPTV affiliated companies. We do not have data on revenues of TV translator or TV booster stations, but virtually all of these entities are also likely to have revenues of less than $13.0 million and thus may be categorized as small, except to the extent that revenues of affiliated non-translator or booster entities should be considered. 25. *FM Translator Stations and Low Power FM Stations.* The proposed rules and policies could affect licensees of FM translator and booster stations and low power FM

(LPFM)stations, as well as potential licensees in these radio services. The same SBA definition that applies to radio broadcast licensees would apply to these stations. The SBA defines a radio broadcast station as a small business if such station has no more than $6.5 million in annual receipts. Currently, there are approximately 5,540 licensed FM translator and 262 booster stations and 820 licensed LPFM stations. Given the nature of these services, we will presume that all of these licensees qualify as small entities under the SBA definition. 26. *Cable and Other Subscription Programming.* The Census Bureau recently updated the NAICS so that these firms are included in the Wired Telecommunications Carriers category, which is described as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has updated the small business size standards to accord with the revised NAICS. The size standard for Wired Telecommunications Carriers is all firms having an average of 1,500 or fewer employees. The Census Bureau has not collected information on the size distribution of firms in the revised classification of Wired Telecommunications Carriers. Accordingly, we will apply the new size standard to Census Bureau data for 2002 regarding the size distribution of Cable and Other Program Distribution. There were a total of 1,191 firms in this category that operated for the entire year. Of this total, 1,178 firms had fewer than 1,000 employees. Thus, under this size standard, the majority of firms can be considered small. 27. *Cable System Operators.* The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 653,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 994 cable operators nationwide, all but thirteen are small under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 28. *Open Video Systems.* Open Video Systems (“OVS”) provide subscription services, including cable services. In 2007, the SBA created a small business size standard for Cable and Other Subscription Programming. The Census Bureau has not collected information on the size distribution of firms in the new standard. Accordingly, we will apply the new size standard to Census Bureau data for 2002 regarding the size distribution of Cable and Other Program Distribution. This standard provides that a small entity is one with $13.5 million or less in annual receipts. The Commission has certified a large number of OVS operators, and some of these are currently providing service. Affiliates of RCN Corporation

(RCN)received approval to operate OVS systems in New York City, Boston, Washington, DC, and other areas. RCN has sufficient revenues to assure that it does not qualify as a small business entity. Little financial information is available for the other entities that are authorized to provide OVS. Given this fact, the Commission concludes that those entities might qualify as small businesses, and therefore may be affected by the rules and policies adopted herein. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements 29. Depending on the rules adopted as a result of this *Notice,* the Report and Order (R&O) ultimately adopted in this proceeding may contain new information collections for eligible entities and/or modified ones for incumbent broadcasters. Any changes in recording or recordkeeping would result from changes in the Commission's forms necessary to implement any rules adopted to promote new entry of small businesses and eligible entities. As noted above, we invite small entities to comment on any such recordkeeping issues in response to the *Notice* . E. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered 30. The Commission is required by law to describe any significant alternatives that might minimize any significant economic impact on small entities. Such alternatives may include the following four alternatives (among others):

(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;

(3)the use of performance, rather than design, standards; and

(4)an exemption from coverage of the rule, or any part thereof, for small entities. 31. As noted, we are directed under law to describe any such alternatives we consider, including alternatives not explicitly listed above. The *Notice* describes and seeks comment on several possible ways to ease entry into the broadcasting business by small entities that have traditionally faced significant difficulties in entering broadcasting. The *Notice* seeks comment on how the proposals herein will achieve that goal. The Commission especially encourages small entities to comment on the proposals in the *Notice* in this proceeding. The Commission welcomes comment on how to minimize any burdens on small cable system operators that might result from eligible entities being entitled to carriage on such systems under the must carry statute and rules. F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 32. None. Ex Parte Restrictions 33. This proceeding has been designated “permit but disclose” for purposes of the Commission's ex parte rules, 47 CFR 1.1200-1.1216. Ex parte presentations will be governed by the procedures set forth in 47 CFR 1.1206 applicable to non-restricted proceedings. Filing Requirements 34. *Comments and Replies.* Pursuant to §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed:

(1)By using the Commission's Electronic Comment Filing System (ECFS),

(2)by using the Federal Government's eRulemaking Portal, or

(3)by filing paper copies. • *Electronic Filers:* Comments may be filed electronically using the Internet by accessing ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the Web site for submitting comments. • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov,* and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • *Paper Filers:* Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of *before* entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington DC 20554. 35. *Availability of Documents.* Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Word 97 and/or Adobe Acrobat. 36. *Accessibility Information.* To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the FCC's Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). Paperwork Reduction Act Analysis 37. The *Notice* seeks comment on potential information collection requirements. The Commission will invite the general public to comment at a later date on any rules developed as a result of this proceeding that require the collection of information, as required by the Paperwork Reduction Act of 1995, Public Law 104.13. The Commission will publish a separate notice seeking these comments from the public. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we will seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” Ordering Clauses *It is ordered,* that pursuant to the authority contained in sections 1, 2(a), 4(i, j), 257, 303(r), 307-10, 336, and 614-15 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i, j), 257, 303(r), 307-310, 336, 534-35, *notice is hereby given* of the proposals described in this *Third Further Notice of Proposed Rule Making* . *It is further ordered* that the Reference Information Center, Consumer Information Bureau, shall send a copy of this *Notice of Proposed Rule Making,* including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 73 Radio, Television. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E8-11043 Filed 5-15-08; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 3, 9, 12, and 52 [FAR Case 2007-006; Docket 2007-0001; Sequence 11] RIN 9000-AK80 Federal Acquisition Regulation; FAR Case 2007-006, Contractor Compliance Program and Integrity Reporting (2nd Proposed Rule) AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule; additional changes proposed. SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are seeking comments on changes to the proposed rule, FAR Case 2007-006, Contractor Compliance Program and Integrity Reporting, published in the **Federal Register** at 72 FR 64019, November 14, 2007, for which the initial comment period has closed, that may be included in the final rule. The Councils do not contemplate publishing a final or interim rule until public comments are received and considered on the specific changes discussed further in this document. DATES: Interested parties should submit written comments to the FAR Secretariat on or before July 15, 2008 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by FAR case 2007-006 by any of the following methods: • *Regulations.gov: http://www.regulations.gov.* Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2007-006” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with FAR Case 2007-006. Follow the instructions provided to complete the “Public Comment and submission Form”. Please include your name, company name (if any), and “FAR Case 2007-006” on your attached document. • *Fax:* 202-501-4067. • *Mail:* General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4041, Washington, DC 20405. *Instructions:* Please submit comments only and cite FAR case 2007-006 in all correspondence related to this case. All comments received will be posted without change to *http://www.regulations.gov,* including any personal and/or business confidential information provided. FOR FURTHER INFORMATION CONTACT: Ernest Woodson, Procurement Analyst, at

(202)501-3775 for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at

(202)501-4755. Please cite FAR case 2007-006. SUPPLEMENTARY INFORMATION: A. Background The Councils published FAR Case 2007-006, Contractor Compliance Program and Integrity Reporting, as a proposed rule in the **Federal Register** at 72 FR 64019, November 14, 2007. The proposed rule was published, at the request of the Department of Justice (DOJ), in order to— • Require contractors to have a code of ethics and business conduct; • Establish and maintain specific internal controls to detect and prevent improper conduct in connection with the award or performance of Government contracts or subcontracts; and • Notify contracting officers without delay whenever they become aware of violations of Federal criminal law with regard to such contracts or subcontracts. The proposed rule was a follow-on case to FAR Case 2006-007, published as a final rule in the **Federal Register** on November 23, 2007 (72 FR 65873). Thirty three respondents commented on the proposed rule. The Councils currently are reviewing the comments and are considering changes to the proposed rule. • The public and other interested parties have expressed concerns about— ○ The proposed exemption for contracts to be performed entirely outside the United States; and ○ The proposed exemption for contracts for the acquisition of commercial items. • In addition, the Department of Justice

(DOJ)proposes to add a requirement for contractors to report violations of the civil False Claims Act, and add knowing failure to timely report such violations as an additional cause for debarment or suspension to FAR Subpart 9.4. Therefore, the Councils are seeking comments and recommendations regarding the changes to the proposed rule FAR text listed later in this notice. This notice includes only the sections of the proposed rule affected by these changes, summarized as follows:

(1)*Require inclusion of the clause FAR 52.203-13 in contracts and subcontracts that will be performed outside the United States (see FAR 3.1004 and 52.203-13(d) in the initial proposed rule* ). This change would result in making the clause requirements for a contractor code of business ethics and conduct, business ethics awareness and compliance program, and internal control system applicable to contracts performed outside the United States. The exemption from the requirement to include the clause 52.203-13 in contracts and subcontracts to be performed entirely outside the United States was a carry-over from the proposed and final rules under FAR Case 2006-007, which addressed both contractor code of business ethics and conduct and the use of fraud hotline posters. The final rule under FAR case 2006-007 relied heavily on the Defense Acquisition Regulations System (DFARS) coverage of contractor business ethics and hotline posters (see 48 CFR 203.70 and 48 CFR 252.203-7002). The DFARS clause on hotline posters does not apply to overseas contracts or to commercial items. There is no DFARS clause on contractor code of business ethics and conduct, just recommended guidelines. When the Councils added the clause at FAR 52.203-13 to contractually require a contractor code of business ethics and conduct, the same exemptions as applied to the hotline posters were perpetuated. The proposed rule under 2007-006, which was issued on an extremely expedited basis, did not propose change to the exemption for overseas contracts that was initiated under FAR case 2006-007. After publication of the proposed rule under 2007-006, DOJ and other respondents expressed concern about the overseas exemption. The Councils note that the proposed rule did not exempt contracts that will be performed entirely outside the United States from all the requirements of the proposed rule. The proposed rule— • Applied the proposed debarment/suspension for knowing failure to timely disclose an overpayment on a Government contract or violations of Federal criminal law in connection with the award or performance of any Government contract or subcontract, to all contracts, whether domestic or overseas. • Applied the policy demanding integrity and honesty (see FAR 3.1002) to all contractors. • Only exempted contracts to be performed entirely outside the United States from inclusion of the clause. • Had a clause requirement for an internal control system which mandated an internal reporting mechanism by which employees may report suspected instances of improper conduct, and instructions that encourage employees to make such reports on any of the contractor's contracts or subcontracts, whether overseas or domestic.

(2)*Require inclusion of the clause at FAR 52.203-13 in contracts (and subcontracts) for all acquisitions of a commercial item.* However, just like small businesses, a formal business ethics awareness and compliance program and internal control system are not required in contracts and subcontracts for the acquisition of commercial items. This would have the effect of applying to contracts for the acquisition of commercial items the requirements for— • A written code of business ethics; • Preventing and detecting criminal conduct; and • Notifying, in writing, when the contractor has reasonable grounds to believe that violations of the civil False Claims Act or Federal criminal law have occurred in connection with the award or performance of this contract or any subcontract thereunder. This is in some ways more fair to contractors providing commercial items, because even though the clause was not included in contracts for the acquisition of commercial items, the contractors were still subject under the initial proposed rule to debarment or suspension for knowing failure to notify the Government of violations of Federal criminal law in connection with the award or performance of the contract (or subcontract). Now the requirement to report violations is explicitly stated in the contract.

(3)*Add a new cause for suspension or debarment to the current lists at FAR 9.407-2 and 9.406-2, respectively.* For suspension, the new cause would be adequate evidence of a knowing failure to timely disclose the violation of the civil False Claims Act in connection with the award or performance of any Government contract, or subcontract thereunder. For debarment, the new cause would be a preponderance of the evidence of a knowing failure to timely disclose violation of the civil False Claims Act (31 U.S.C. 3729-3733) in connection with the award or performance of any Government contract, or subcontract thereunder. This would also be added as a required disclosure in the contract clause. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. B. Regulatory Flexibility Act The changes may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because small businesses will be required to notify, in writing, the agency Office of the Inspector General, with a copy to the contracting officer, whenever the contractor has reasonable grounds to believe that a principal, employee, agent, or subcontractor of the contractor has committed a violation of the civil False Claims Act or a violation of Federal criminal law in connection with the award or performance of this contract or any subcontract thereunder. An Initial Regulatory Flexibility Analysis

(IRFA)was prepared in connection with the initial proposed rule. The analysis is summarized as follows: The IRFA reported that “the clause requirements for a formal awareness/training program and internal control system will not apply to small business concerns.” (See 72 FR 64021.) That is still true. Only the requirements of paragraph

(b)of the clause will apply (to have a written code of business ethics and to notify the agency Office of the Inspector General in writing, with a copy to the contracting officer whenever the Contractor has reasonable grounds to believe that a principal, employee, agency, or subcontractor of the contractor has committed a violation of the False Claims Act or a violation of Federal criminal law). The proposed changes that affect the IRFA are as follows: • Applies to contracts to be performed outside the United States. • Applies to contracts for the acquisition of commercial items (except 52.203-13(c)). • Requires reporting of violations of civil False Claims Act. The requirement in the proposed rule “to notify the agency inspector general and the contracting officer in writing whenever the contractor has reasonable grounds to believe that a principal, employee, agent, or subcontractor of the contractor has committed a violation of Federal criminal law in connection with the award or performance of any Government contract or subcontract” (72 FR 64020) was applicable to small, as well as large, businesses. The IRFA estimated that approximately 1,400 prime and subcontracts with small businesses would include the contract clause. We estimate that by including small businesses that offer commercial items or that perform contracts outside the United States, the number of small businesses impacted by the clause may increase by 50%. We estimate that the requirement to report violations of the civil False Claims Act may double the number of reports. The number of small businesses that would actually be required by the clause to submit a report would then be calculated as 84 (28 × 1.5 × 2). The number of small entities that are not impacted by the clause requirement but would report alleged violations of the civil False Claims Act was estimated to be 17. This estimate has doubled, because of the addition of mandatory reporting of violations of the civil False Claims Act. Therefore, the total number of small businesses submitting a report has increased from 45 to 118 (84+34). The FAR Secretariat has submitted a copy of the amended IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the FAR Secretariat. The Councils will consider comments from small entities concerning the affected FAR parts 3, 9, 12, and 52 in accordance with 5 U.S.C. 610. Comments must be submitted separately and should cite 5 U.S.C 601, *et seq* . (FAR case 2007-006), in correspondence. C. Paperwork Reduction Act The Paperwork Reduction Act (Pub. L. 104-13) applies because the proposed rule contains information collection requirements. Accordingly, the FAR Secretariat will submit a request for approval of a revised information collection requirement concerning Contractor Compliance Program and Integrity Reporting to the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* The estimated reporting burden for a violation remains *3* hours. Based on the revised number of impacted contractors and retaining the other figures used in the initial estimate, the annual reporting burden is revised as follows: *Respondents:* 284. *Responses per respondent:* 1. *Total annual responses:* 284. *Preparation hours per response:* 3. *Total response burden hours:* 852. Annual Reporting Burden Public reporting burden for this collection of information is estimated to average *3* hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. D. Request for Comments Regarding Paperwork Burden Submit comments, including suggestions for reducing this burden, not later than June 16, 2008 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (VPR), 1800 F Street, NW., Room 4041, Washington, DC 20405. Please cite OMB Control Number 9000-00XX, Contractor Compliance Program and Integrity Reporting, in all correspondence. *Public comments are particularly invited on:* Whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. Requester may obtain a copy of the justification from the General Services Administration, FAR Secretariat (VPR), Room 4041, Washington, DC 20405, telephone

(202)501-4755. Please cite OMB Control Number 9000-00XX, Contractor Compliance Program and Integrity Reporting, in all correspondence. List of Subjects in 48 CFR Parts 3, 9, 12, and 52 Government procurement. Dated: May 14, 2008. Al Matera, Director, Office of Acquisition Policy. Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 3, 9, 12, and 52 as set forth below: 1. The authority citation for 48 CFR parts 3, 9, 12, and 52 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). PART 3—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 2. Amend section 3.1002 by adding paragraph

(c)to read as follows: 3.1002 Policy.

(c)A contractor may be suspended and/or debarred for knowing failure to timely disclose a violation of the civil False Claims Act or Federal criminal law in connection with the award or performance of any Government contract performed by the contractor or a subcontract awarded thereunder (see 9.406-2(b)(1)(v) and 9.407-2(a)(7)). 3. Revise paragraph

(a)of section 3.1004 to read as follows: 3.1004 Contract clauses.

(a)Insert the clause at FAR 52.203-13, Contractor Code of Business Ethics and Conduct, in solicitations and contracts if the value of the contract is expected to exceed $5,000,000 and the performance period is 120 days or more. PART 9—CONTRACTOR QUALIFICATIONS 4. Amend section 9.406-2 by revising the introductory text of paragraph (b)(1) and adding paragraph (b)(1)(v) to read as follows: 9.406-2 Causes for debarment. (b)(1) A contractor, based upon a preponderance of the evidence, for any of the following—

(v)Knowing failure to timely disclose—

(A)An overpayment on a Government contract;

(B)Violation of the civil False Claims Act (31 U.S.C 3729-3733) in connection with the award or performance of any Government contract or subcontract; or

(C)Violation of Federal criminal law in connection with the award or performance of any Government contract or subcontract. 5. Amend section 9.407-2 by adding paragraph (a)(7) to read as follows: 9.407-2 Causes for suspension.

(a)* * *

(7)Knowing failure to timely disclose—

(i)An overpayment on a Government contract;

(ii)Violation of the civil False Claims Act (31 U.S.C 3729-3733) in connection with the award or performance of any Government contract or subcontract; or

(iii)Violation of Federal criminal law in connection with the award or performance of any Government contract or subcontract. PART 12—ACQUISITION OF COMMERCIAL ITEMS 6. Amend section 12.301 by redesignating paragraph (d)(2) as (d)(3) and adding a new (d)(2) to read as follows: 12.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

(d)* * *

(2)Insert the clause at 52.203-13, Contractor Code of Business Ethics and Conduct, as prescribed in 3.1004(a). PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 7. Amend section 52.203-13 by— a. Revising the date of clause; b. Adding paragraph (b)(3); c. Revising the introductory text of paragraph

(c)and (c)(2)(ii); d. Adding paragraph (c)(2)(ii)(F); and e. Revising paragraph (d). 52.203-13 Contractor Code of Business Ethics and Conduct. Contractor Code of Business Ethics and Conduct ([Insert Abbreviated Month and Year of Publication in the Federal Register])

(b)* * *

(3)The Contractor shall notify, in writing, the agency Office of the Inspector General, with a copy to the Contracting Officer, whenever the Contractor has reasonable grounds to believe that a principal, employee, agent, or subcontractor of the Contractor has committed a violation of the civil False Claims Act or a violation of Federal criminal law in connection with the award or performance of this contract or any subcontract thereunder.

(c)*Business ethics awareness and compliance program and internal control system.* This paragraph

(c)does not apply if the Contractor has represented itself as a small business concern pursuant to the award of this contract or if 52.212-4 appears in this contract.

(2)* * *

(ii)At a minimum, the Contractor's internal control system shall provide for the following:

(F)Timely reporting, in writing, to the agency Office of the Inspector General, with a copy to the Contracting Officer, whenever the Contractor has reasonable grounds to believe that a principal, employee, agent, or subcontractor of the Contractor has committed a violation of the civil False Claims Act (31 U.S.C 3729-3733) or a violation of Federal criminal law in connection with the award or performance of any Government contract performed by the Contractor or a subcontract thereunder.

(d)*Subcontracts.*

(1)The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts that have a value in excess of $5,000,000 and a performance period of more than 120 days.

(2)In altering this clause to identify the appropriate parties, all reports of violation of the civil False Claims Act or violation of Federal criminal law shall be directed to the agency Office of the Inspector General, with a copy to the Contracting Officer. (End of clause) [FR Doc. E8-11137 Filed 5-15-08; 8:45 am] BILLING CODE 6820-EP-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R6-ES-2008-0001; 92220-1113-0000-C6] RIN 1018-AU67 Endangered and Threatened Wildlife and Plants; Proposed Removal of Erigeron maguirei From the Federal List of Endangered and Threatened Plants; Availability of Post-Delisting Monitoring Plan AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; notice of availability. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), under the Endangered Species Act of 1973, as amended

(Act)(16 U.S.C. 1531 et seq.), propose to remove the plant *Erigeron maguirei* (commonly referred to as Maguire daisy) from the List of Endangered and Threatened Plants. The best scientific and commercial data available indicate that this species has recovered and no longer meets the definition of threatened or endangered under the Act. Our review of the status of this species shows that populations are stable, threats have been addressed, and adequate regulatory mechanisms ensure the species is not currently and is not likely to again become an endangered species within the foreseeable future in all or a significant portion of its range. We seek information, data, and comments from the public regarding *E. maguirei,* this proposal to delist, and the Post-Delisting Monitoring Plan. This proposed rule completes the 5-year status review initiated on April 7, 2006 (71 FR 17900). DATES: We will accept comments received or postmarked on or before July 15, 2008. Public hearing requests must be received by June 30, 2008. ADDRESSES: You may submit comments by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *U.S. mail or hand-delivery:* Public Comments Processing, Attn: RIN 1018-AU67; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will not accept e-mail or faxes. We will post all comments on *http://www.regulations.gov* . This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). FOR FURTHER INFORMATION CONTACT: Larry Crist, Field Supervisor, U.S. Fish and Wildlife Service, Utah Field Office, 2369 West Orton Circle, West Valley City, UT 84119, or telephone

(801)975-3330. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at

(800)877-8337 for TTY assistance. SUPPLEMENTARY INFORMATION: Public Comments Solicited We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we hereby request data, comments, new information, or suggestions from the public, other concerned governmental agencies, the scientific community, Tribes, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

(1)Biological information concerning this species;

(2)Relevant data concerning any current or likely future threats (or lack thereof) to this species, including the extent and adequacy of Federal and State protection and management that would be provided to the *Erigeron maguirei* as a delisted species;

(3)Additional information concerning the range, distribution, population size, and population trends of this species, including the locations of any additional populations of this species;

(4)Current or planned activities in the subject area and their possible impacts on this species; and

(5)Our draft Post-Delisting Monitoring Plan. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not accept comments sent by e-mail or fax or to an address not listed in the ADDRESSES section. If you submit a comment via *http://www.regulations.gov,* your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on *http://www.regulations.gov.* Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on *http://www.regulations.gov,* or by appointment during normal business hours at the Utah Field Office, 2369 West Orton Circle, West Valley City, UT 84119 (801/975-3330). Public Hearing The Act provides for one or more public hearings on this proposal, if requested. Requests must be received by June 30, 2008. Such requests must be made in writing and addressed to the Field Supervisor (see FOR FURTHER INFORMATION CONTACT section). Previous Federal Action Section 12 of the Act directed the Secretary of the Smithsonian Institution to prepare a report on those plants considered to be endangered, threatened, or extinct. On July 1, 1975, the Service published a notice in the **Federal Register** (40 FR 27824) accepting the Smithsonian report as a petition to list taxa named therein under section 4(c)(2) (now 4(b)(3)) of the Act) and announced our intention to review the status of those plants. *Erigeron maguirei* was included in that report (40 FR 27880, July 1, 1975). Maguire daisy is the common name for *Erigeron maguirei,* however we will use primarily the scientific name of this species throughout this proposed rule to clarify taxonomic issues or the legal status of the plant. On June 16, 1976, we published a rule in the **Federal Register** (41 FR 24524) to designate approximately 1,700 vascular plant species, including *Erigeron maguirei,* as endangered pursuant to section 4 of the Act. The 1978 amendments to the Act required that all proposals over 2 years old be withdrawn. On December 10, 1979, we published a notice of withdrawal (44 FR 70796) of that portion of the June 16, 1976, proposal that had not been made final, which included *E maguirei.* On December 15, 1980, we published a revised notice of review for native plants in the **Federal Register** designating *Erigeron maguirei* as a candidate species (45 FR 82480). Section 4(b)(3)(B) of the 1982 amendments to the Act required that the Secretary of the Interior make a finding on a petition within 1 year of its receipt. In addition, section 2(b)(1) of the 1982 amendments to the Act required that all petitions pending as of October 13, 1982, be treated as if newly submitted on that date. Since the 1975 Smithsonian report was accepted as a petition, all the taxa contained in those notices, including *E. maguirei,* were treated as being newly petitioned as of October 13, 1982. On October 13, 1983, the Service made a 12-month finding that the petition to list *E. maguirei* var. *maguirei* was warranted but precluded by other listing actions of a higher priority. Notification of this finding was published in the **Federal Register** on November 28, 1983 (48 FR 53640). On July 27, 1984, the Service published a proposed rule to designate Erigeron *maguirei* var. *maguirei* as an endangered species (49 FR 30211). The final rule designating the variety of the species as endangered was published on September 5, 1985 (50 FR 36089). In 1983, *E. maguirei* var. *harrisonii* was described as a separate variety of *E. maguirei.* In this description, Welsh (1983a, p. 367) noted two previous collections of the variety at canyon bottom sites in Wayne County, Utah, in the 1930s. On September 27, 1985, the Service published a notice of review for plants (50 FR 39526) which included *Erigeron maguirei* var. *harrisonii* as a candidate species (50 FR 39548). *Erigeron maguirei* var. *harrisonii* remained as a candidate through the revised plant notice of review published on September 30, 1993 (58 FR 51144). On September 7, 1994 (59 FR 46219), the Service proposed to reclassify the species from endangered to threatened based on the new genetic information that led to a taxonomic revision, changing the entry for *Erigeron maguirei* var. *maguirei* to *E. maguirei.* The proposed rule noted that this entity also included the plant variety formerly known as *E. m.* var *harrisonii* . On June 19, 1996, the Service finalized the rule reclassifying Maguire daisy from endangered to threatened in large part due to a taxonomic revision and resultant increase in the population considered as *Erigeron maguirei* (61 FR 31054). Species Information A member of the sunflower family, *Erigeron maguirei* is a perennial herb with a branched woody base. Its stems and spatulate-shaped leaves are densely spreading and hairy. Its flowers are dime sized with white or pink petals. Bits of sand commonly cling to the hairs of the leaves and stems. The species is further described in our June 19, 1996, final rule reclassifying the species as threatened (61 FR 31054). *Erigeron maguirei* has been located from 1,585 to 2,621 meters

(m)(5,200 to 8,600 feet (ft)) in elevation (Clark et al. 2006, pp. 9-11). Highest plant densities occur on mesa tops between 1,829 and 2,134 m (6,000 and 7,000 ft) in elevation (Kass 1990, p. 27; Service 1995, p. 2; Clark 2001, p. 15; Clark et al. 2006, p. 14). The species occurs from the San Rafael Swell in Emery County, Utah, south into Wayne and Garfield Counties, Utah, through the Waterpocket Fold in Capitol Reef National Park (Capitol Reef) (Heil 1987, p. 5, figure 5; Heil 1989, p. 26; Kass 1990, pp. 23, 26-27; Harper and Van Buren 1998, appendix A; Clark 2001, p. 3; Clark 2002, pp. 13-14; Clark et al. 2005, p. 7; Clark et al. 2006, p. 7) (see Figure 1). *Erigeron maguirei* occurs primarily on the Navajo Sandstone formation. Individuals have been located within steep, narrow, dry, rocky, and sandy canyon or wash bottoms of the Wingate, Chinle, and Navajo Sandstone formations; sandstone walls of the Wingate, Navajo, and Cutler formations; cracks of large boulders; slickrock; and atop mesas of the Navajo Sandstone formation (Cronquist 1947, p. 165; Anderson 1982, pp. 1-2; Heil 1989, pp. 25-26; Kass 1990, p. 22; Harper and Van Buren 1998, p. 1). Populations within canyon bottoms are apparently established from seeds dispersed by wind or overland flow from source populations on the mesa tops (Heil 1989, p. 25; Kass 1990, p. 27; Service 1995, p. 2). These canyon populations are generally small compared with those on the mesa tops (Heil 1989, p. 25; Kass 1990, p. 27; Service 1995, p. 2). BILLING CODE 4310-55-P EP16MY08.017 BILLING CODE 4310-55-C *Erigeron maguirei* has been found primarily in the Dwarf Mountain Mahogany Slickrock plant community, a community endemic to the Colorado Plateau Region (Heil 1989, p. 23; Clark 2001, pp. 15-16; Clark et al. 2006, p. 15). *E. maguirei* also is associated with pinyon/juniper—tall shrub, ponderosa pine—tall shrub slickrock pockets, mesic canyon bottoms, mountain shrub, and intermittent riparian communities (Kass 1990, p. 22; Harper and Van Buren 1998, p. 1; Clark 2002, pp. 15-16; Clark et al. 2005, p. 7; Clark et al. 2006, p. 15). Flowering occurs from May to June and takes 4 to 6 weeks to go from the small green “button” bud stage to completion of anthesis, when the flower is no longer open and functional (Alston and Tepedino 2005, p. 54; Clark et al. 2006, p. 17). It appears that *Erigeron maguirei* lacks self-compatibility, and that pollinators are necessary for cross pollination to occur (Alston and Tepedino 2005, p. 61). Because of the open nature of the flower head, *E. maguirei* tends to be visited by opportunistic insects searching for nectar (Alston and Tepedino 2005, p. 60). Pollinators include various flies, wasps, and bees (Alston and Tepedino 2005, p. 60). Van Buren and Harper (2002, p. 1) collected demographic data on three *Erigeron maguirei* populations for a period of 9 years. The demographic data collected included plant diameter, size class, plant height, plant condition, and number of flower heads produced for individual tagged plants (Van Buren and Harper 2002, p. 2). At the Eagle Canyon study site, 124 plants were tagged in 1992 and 41 of these were still alive in 2001 (Van Buren and Harper 2002, pp. 2-3). This demographic monitoring study suggests the species is long lived, has a low mortality rate, and has the ability to replace individuals at a rate that compensates for mortality (Van Buren and Harper 2002, pp. 2-5). Overall, monitored populations appear stable (Van Buren and Harper 2002, p. 2). Recovery Recovery plans are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished. In that instance, the Service may judge that the threats have been minimized sufficiently, and the species is robust enough to reclassify from endangered to threatened or to delist. In other cases, recovery opportunities may have been recognized that were not known at the time the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan. The Maguire Daisy ( *Erigeron maguirei* ) Recovery Plan was approved by the Service on August 15, 1995. The Recovery Plan outlined three delisting criteria. These criteria, and the status of the species relative to these criteria, are outlined below. *Delisting Criterion One—Locate and/or establish additional populations. Maintain 20 populations which have been demonstrated to be above minimum viable population levels. Until minimum viable population levels are determined, it is assumed that the minimum viable population level will be about 500 individuals (Service 1995, p. ii).* At the time the Recovery Plan was written, the species was known from 7 populations (32 sites) with the total population estimated at 5,000 (Service 1995, p. 2). To achieve this criterion, the Recovery Plan recommended land managers inventory suitable habitat to determine with a reasonable degree of accuracy its population and distribution (Service 1995, pp. ii, 6, 7, 12). Thus, in 1999, the Service, the Bureau of Land Management (BLM), U.S. Department of Agriculture Forest Service (Forest Service), and the National Park Service

(NPS)established an Interagency Rare Plant Agreement to direct conservation measures for listed and sensitive plant species endemic to central Utah, including *Erigeron maguirei* (Clark 2002, p. 3). Through this interagency agreement, the agencies committed funding to survey and monitor *E. maguirei* throughout its range, regardless of agency boundaries (Clark 2002, p. 3). Beginning in 1999, these agencies hired an Interagency Botanist to oversee a team of seasonal employees, thus creating an Interagency Rare Plant Team (Forest Service et al. 2006, p. 6). As part of recovery activities for the *E. maguirei,* from 1999 to 2002, approximately 3,521 hectares (8,700 acres) were surveyed for *E. maguirei* on NPS, BLM, and Forest Service lands (Clark and Clark 1999, p. 45; Clark 2002, p. 13). During this period, approximately 2,445 person-hours were allocated by the Interagency Rare Plant Team for *E. maguirei* surveys (Clark 2002, p. 13). The recovery criterion of maintaining 20 viable populations was based primarily on the assumption that numerous small sites would remain scattered and disconnected (Clark 2006c). Instead of identifying more populations, increased survey efforts conducted under Action 2.0 in the Recovery Plan identified both broader plant distributions and larger population sizes that are evenly distributed across the landscape (Harper and Van Buren 1998, p. 2; Clark and Clark 1999, p. 47; Clark 2001, p. 3; Clark 2002, pp. 13-14; Clark et al. 2005, p. 17; Clark et al. 2006, p. 17). Based on our current knowledge of the species, 9 known populations exist (118 sites) within 4 meta-populations comprised of approximately 164,250 *Erigeron maguirei* individuals (see Figure 1 and Table 1) (Clark et al. 2006, p. 16). *Sites* are defined as occurrence locations recorded by one or more researcher over time (Clark 2006b, p. 5). *Populations* are defined as groups of occurrence records (i.e., sites) located in the same geographic vicinity (Clark 2006b, p. 5). A *meta-population* is comprised of a number of individual populations less than 2.4 kilometers (1.5 miles) apart, typically linked by continuous suitable habitat (Clark 2006b, p. 5, Clark 2006c). The populations cannot be split into more than nine separate populations based on any meaningful criteria (Clark 2006c). The range of the species is currently estimated at approximately 1,010 square kilometers

(km)(390 square miles (mi)) and extends from the San Rafael Swell south through the Waterpocket Fold of Capitol Reef (see Figure 1) (Clark et al. 2006, p. 17). All three populations within the Capitol Reef Meta-Population are linked by contiguous suitable habitat. Although not necessary for recovery, Clark et al. (2006, p. 24) postulated that further survey work would likely find sufficient numbers of plants to link them into one contiguous population. A similar situation exists within the San Rafael Swell area where suitable habitat occurrences are separated by short distances (Clark et al. 2006, p. 24). These large, connected, and evenly distributed populations provide the desired viability intended by the recovery plan. The 9 populations have more desirable biological attributes than the originally suggested 20 populations in the recovery plan. As mentioned above, the need for 20 populations was based on the assumption that the originally identified localities would remain widely scattered and the populations in those localities would remain small. However, the 9 current populations are well connected within 4 meta-populations, the meta-populations are distributed throughout the range of the species, and most of the populations within those meta-populations have large numbers of individuals. In fact, most of the populations are well above the minimum viable population size of 500 (see Table 1). Although some of the individual populations are below the minimum viable population size, those populations are connected to other populations within meta-populations, thereby increasing the species' robustness. In addition, recent population dynamics studies confirm the species' projected population stability (Van Buren and Harper 2002, pp. 1-5; Clark et al. 2006, p. 24). Demographic monitoring data suggests the species is long lived, has a low mortality rate, and has the ability to replace individuals at a rate that compensates for mortality (Van Buren and Harper 2002, pp. 2-5). The 9 current populations are functionally better than the estimated 20 populations originally identified in the recovery plan. Therefore, on the whole, the available data demonstrate that the intent of this recovery criterion has been met or exceeded. Table 1.—Erigeron maguirei Populations, Population Estimates and Protective Land Management Designations Population Population estimate Number of sites Land ownership ** Protective designations ** Percent of the species' range within the protective designation Northern San Rafael Swell Meta-Population Calf Canyon * 2,000 1 2 BLM SITLA ACEC None 95 0 Central San Rafael Swell Meta-Population Coal Wash 100 6 BLM WSA ACEC 90 100 Secret Mesa 9,000 9 BLM WSA ACEC 90 100 1,000 2 SITLA None 0 Link Flats 200 50 4 1 BLM SITLA None None 0 0 Southern San Rafael Swell Meta-Population John's Hole 300 3 BLM WSA ACEC 100 10 Seger's Hole 100 2 BLM WSA ACEC 50 20 Capitol Reef Meta-Population Deep Creek 1,500 2 Forest Service Proposed Botanical Area 1 100,000 29 NPS Primitive and Threshold Management Zone 100 Capitol Reef 30,000 15 NPS Primitive and Threshold Management Zone 100 Waterpocket Fold 20,000 42 NPS Primitive and Threshold Management Zone 100 Totals 164,250 118 Various Various 97 * The Calf Canyon population estimate is from 1980. Due to inaccessibility, this site has not been revisited since 1980 and current population levels are unknown. However, other populations are doing well and there is no reason to believe that the Calf Canyon population is not also doing well (Clark 2007a). Current distribution among BLM and SITLA is also unknown although 1980 estimates suggest 25 percent of the range was on BLM land and 75 percent was on SITLA land. ** SITLA = Utah's School of Public Land Trust; ACEC = Area of Critical Environmental Concern; WSA = Wilderness Study Area. 1 0% (will be 100% if proposed Botanical Area is finalized). *Delisting Criterion Two—Establish formal land management designations for these populations which provide long-term, undisturbed habitat for Maguire daisy (Service 1995, p. ii). Delisting Criterion Three—Ensure that Maguire daisy and its habitat is protected from loss of individuals and environmental degradation (Service 1995, p. ii)* . To achieve these criteria, the Recovery Plan recommends the Service and our partners “document the presence of, or, if necessary, establish formal land management designations which would provide for long-term protection for Maguire daisy and its habitat” (Service 1995, pp. ii, 6, 9, 12). Approximately 97 percent of the species' range occurs on lands with substantial protective measures in place (see Table 1). Protections are afforded to populations occurring in Capitol Reef through the NPS General Management Plan (Capitol Reef 1998, pp. 27-31). The BLM provides protections for populations occurring on their lands under the 1991 San Rafael Resource Management Plan (BLM 1991a, pp. 12-26, 63-64). Most of the habitat on BLM land is protected as Wilderness Study Areas or Areas of Critical Environmental Concern (see Factor D below). The BLM Price Field Office is currently proceeding with a revision of the 1991 Resource Management Plan (BLM 2004). The Record of Decision for the Final Resource Management Plan is scheduled to be completed by the summer of 2008 (BLM 2008a, p. 1). The Dixie National Forest and Fishlake National Forest released a draft Land Management Plan identifying the Billings Pass Botanical Area, which would provide protection to *Erigeron maguirei* (Forest Service 2006a, pp. 2c-17, 2c-18, 2c-43; Tait 2006). At the time of this proposed rule, a schedule was not available for the completion of this document. The Fishlake National Forest Off-Highway Vehicle Route Designation Project (Forest Service 2006b, pp. 13, 20-21) will eliminate cross country travel on Forest Service lands throughout the range of the species; all habitat is a minimum of 0.8 km (0.5 mi) from existing or potential motorized routes on Fishlake National Forest lands (Forest Service 2006c, pp. 123, 260-263). The Utah State School and Institutional Trust Lands (SITLA) owns lands that contain less than 2 percent of all known or estimated *Erigeron maguirei* plants. While SITLA does not have a specific management plan to benefit *E. maguirei* , we do not believe this is necessary to achieve the recovery criterion. Since its 1985 listing, Federal land management agencies have worked collaboratively to ensure long-term protection of *Erigeron maguirei* and its habitat. Land management plans, policies, and regulations that provide protection to *E. maguirei* are in place. More information regarding the protection of *E. maguirei* through land management designations is contained within Factor D of the Summary of Factors Affecting the Species. To further ensure these efforts continue post-delisting, the Interagency Rare Plant Team has developed the Central Utah Navajo Sandstone Endemics Conservation Agreement and Conservation Strategy (hereafter referred to as the Conservation Strategy), a multi-year joint project by the Forest Service, BLM, NPS, and the Service (Forest Service et al. 2006). We believe the Conservation Strategy will ensure conservation efforts that have occurred for the species since formation of the Interagency Rare Plant Team in 1999 will continue. The Conservation Strategy, signed by the Forest Service, BLM, NPS, and the Service in September 2006, outlines the procedural provisions under which the Federal agencies will manage *Erigeron maguirei* into the foreseeable future (Forest Service et al. 2006, pp. 24-25). In addition, the Conservation Strategy documents the conservation actions needed to manage potential factors impacting the species and to promote the conservation and perpetuation of *E. maguirei* (Forest Service et al. 2006, pp. 38-47). The Conservation Strategy can be viewed in its entirety at: *http://mountain-prairie.fws.gov/species/plants/maguiredaisy/* . Copies can also be obtained from the Utah field office (see FOR FURTHER INFORMATION CONTACT ). Based on the best available data, we have determined that the intent of the first criterion has been achieved and the second and third recovery criterion have been met. Current estimates suggest approximately 97 percent of all known individuals occur on lands with formal land management designations that provide for the long-term protection of the habitat. This ensures *Erigeron maguirei* and its habitat are protected from loss of individuals and environmental degradation. Summary of Factors Affecting the Species Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider these same five factors in delisting a species. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons:

(1)The species is extinct;

(2)the species has recovered and is no longer endangered or threatened (as is the case with the Maguire daisy); and/or

(3)the original scientific data used at the time the species was classified were in error. A recovered species is one that no longer meets the Act's definition of threatened or endangered. Determining whether a species is recovered requires consideration of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as threatened or endangered, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections. A species is “endangered” for purposes of the Act if it is in danger of extinction throughout all or a “significant portion of its range” and is “threatened” if it is likely to become endangered within the foreseeable future throughout all or a “significant portion of its range.” The word “range” in the significant portion of its range

(SPR)phrase refers to the range in which the species currently exists. For the purposes of this analysis, we will evaluate whether the currently listed species, the *Erigeron maguirei* , should be considered threatened or endangered. Then we will consider whether there are any portions of the species' range in danger of extinction or likely to become endangered within the foreseeable future. Foreseeable future is determined by the Service on a case-by-case basis, taking into account a variety of species-specific factors such as lifespan, genetics, breeding behavior, demography, threat-projection timeframes, and environmental variability. In this case, we do not foresee any significant changes in the level of threats for *Erigeron maguirei* . Land management designations (described below) provide long-term security for approximately 97 percent of known plants. Other factors once thought capable of significantly impacting the species are now predicted to have little or no impact on the species' long-term conservation status. While we could consider the species secure in perpetuity, such a timeframe would introduce an unreasonable level of uncertainty into our analysis. Therefore, for the purpose of our analysis, we consider a timeframe over which it would be reasonable to expect population level or demographic effects to be detected. For the purposes of this proposed rule, we consider “foreseeable future” for *E. maguirei* to be up to 30 years. The species has been shown to live past 9 years of age and may live between 20 and 30 years (Van Buren and Harper 2002, appendices; England 2007). The available data also demonstrate that plants may begin flowering as early as 1 year and may be able to replace themselves within as little as 2 years, depending upon conditions (Van Buren and Harper 2002, appendices). Consideration of factors potentially impacting the species for up to 30 years would incorporate the long life of an individual and allow for up to 15 possible generations. We believe this represents a reasonable biological timeframe to measure demographic changes that could reflect potential threat factors. The following analysis examines all five factors currently affecting, or that are likely to affect, *Erigeron maguirei* within the foreseeable future. A. The Present or Threatened Destruction, Modification, or Curtailment of its Habitat or Range The current range of *Erigeron maguirei* includes 9 populations (118 sites) within 4 meta-populations across approximately 1,010 square km (390 square mi) of southeastern Utah. These populations extend from the San Rafael Swell south through the Waterpocket Fold of Capitol Reef (see Figure 1) (Clark et al. 2006, p. 17). The three largest populations, including over 91 percent of all known plants, occur primarily within Capitol Reef. One of these three populations (Deep Creek) also includes a small portion, less than 1 percent of all the known plants, on National Forest lands. The other six populations (Calf Canyon, Coal Wash, Secret Mesa, Link Flats, John's Hole, and Seger's Hole) are managed primarily by the BLM. A portion of three of these six populations (Calf Canyon, Secret Mesa, and Link Flats) also occurs on Utah's School of Public Land Trust (SITLA) lands. Table 1 provides further detail on populations and land ownership. When the species was originally listed, the main threat was loss of habitat specifically due to mining claims for uranium, energy exploration, grazing, and off-road vehicle recreation (50 FR 36089-36091, September 5, 1985). In addition, flooding has also been seen as a potential threat in the recent years. We address these threats to *Erigeron maguirei* below. *Mineral Exploration and Development Overview* —Mineral exploration and development were listed as threats in the 1985 listing, in the 1995 Recovery Plan, and in the 1996 downlisting (50 FR 36089, September 5, 1985; Service 1995, p. 5; 61 FR 31054, 31056, June 19, 1996). Only one active mine exists within the range of *Erigeron maguirei* populations according to the Utah Mineral Occurrence System (Utah Geological Survey

(UGS)2007; Clark et al. 2006, p. 9). This mine, the Lucky Strike Mine, is discussed below. *Uranium* —Uranium mining began in the western United States in 1871 (Ringholz 1994, p. 2). In 1952, geologist Charles Steen found the first noteworthy deposits of uranium ore in Utah (Ringholz 1994, p. 2). By the end of 1962, Utah had produced approximately 9 million tons of ore (Ringholz 1994, p. 2). The Atomic Energy Commission held ample uranium ore reserves and by 1970 stopped buying uranium (Ringholz 1994, p. 3). When nuclear power plants came on-line in the mid-1970s, a brief second boom was experienced (Ringholz 1994, p. 3). However, foreign competition, Federal regulations, and nuclear fears led to an abandonment of domestic uranium mining (Ringholz 1994, p. 3). A recent surge in prices has led to a resurgence in prospectors staking and buying up uranium claims. According to the Utah Mineral Occurrence System database, 12 known uranium mineral locations overlap the mapped *Erigeron maguirei* populations (UGS 2007; Clark et al. 2006, p. 16). Only the Lucky Strike Mine is active (UGS 2007). This mine occurs along the southern edge of the mapped Link Flats population (Central San Rafael Swell Meta-Population) and is accessed via an existing road that enters the population from the south (UGS 2007; Clark et al. 2006, p. 9). It is not anticipated that the mine will adversely impact substantial portions of this population in the foreseeable future as it lies on the periphery of the population and is accessed via an existing road. The remaining 11 locations include 6 sites that never produced and 5 sites that only reached small production levels (UGS 2007). All 11 of these locations occur on the periphery of the mapped populations (UGS 2007; Clark et al. 2006, p. 16). Uranium is restricted to geologic formations such as the Moss Back Member, Monitor Butte Member, and the Mottled Siltstone Unit of the Chinle Formation, while the Maguire daisy primarily occurs in the Navajo Sandstone geologic formation. The most substantial impact of uranium mining would likely be indirectly from crossing suitable habitat while accessing the desired geologic formation (Utah Geologic Survey

(UGS)2007; Clark et al. 2006, p. 20). Based on the locations of past exploration coupled with the geologic requirements of uranium, we foresee minimal potential impacts from uranium mining to the species as a whole in the foreseeable future. *Gypsum* —Although not specifically mentioned in any previous Service threats assessment, gypsum mining also occurs in the vicinity of *Erigeron maguirei* . While *E. maguirei* does not occur in the geologic formation that contains commercial quality gypsum, suitable habitat may be crossed while accessing the more desirable geologic formations (Clark et al. 2006, p. 20). According to the Utah Mineral Occurrence System database, one gypsum occurrence that never produced lies within the mapped Deep Creek population within Capitol Reef (UGS 2007). This occurrence is located on the periphery of the mapped population and within the Primitive Management Zone (Capitol Reef 1998, p. 27; UGS 2007). NPS regulations protect this population by limiting access (Capitol Reef 1998, p. 27). Travel through this Management Zone is limited to cross-country hiking or horseback riding on unimproved trails and routes (Capitol Reef 1998, pp. 28-29). Within the Primitive Management Zone, developments are not permitted and physical modifications are not allowed except for natural or cultural resource protection (Capitol Reef 1998, p. 29). More importantly, lands are withdrawn from mining and mineral exploration in Capitol Reef (Clark et al. 2006, p. 21). Therefore, gypsum mining impacts to the *E. maguirei* are not likely in the foreseeable future. *Oil Shale and Tar Sands* —The Conservation Strategy does not recognize oil shale and tar sands as a threat (Forest Service et al. 2006, p. 37). However, the mapped populations of Calf Canyon, Secret Mesa, and Link Flats overlap the mapped tar sand areas as depicted on the Energy Resources Map of Utah (Automated Geographic Reference Center

(AGRC)2001a, 2001b; Clark et al. 2006, p. 9). Tar sands are a mixture of sand or clay, water, and extremely heavy crude oil. Typically, strip mining is the most efficient method of extraction, but other approaches include the injection of steam and/or solvents to reduce the oils viscosity allowing the oil to be pumped out of the well. Ten percent of the mapped Calf Canyon population overlaps that of the mapped high probability tar sand areas and probable tar sand areas (AGRC 2001b; Clark et al. 2006, p. 9). The Secret Mesa population contains a small area of tar sands (AGRC 2001a; Clark et al. 2006, p. 9). The Link Flats population contains a small area of tar sands, and approximately 2 percent of the mapped area overlaps that of the mapped probable and highly probable tar sand areas (AGRC 2001a, 2001b; Clark et al. 2006, p. 9). Portions of the mapped Calf Canyon, Secret Mesa, and Link Flats populations have been identified in the Draft Oil Shale and Tar Sands Resource Management Plan Amendments to Address Land Use Allocations in Colorado, Utah, and Wyoming and Programmatic Environmental Impact Statement (BLM 2007, pp. 3-127 and 3-163; Clark et al. 2006, p. 9). The purpose of the draft programmatic Environmental Impact Statement is to describe where oil shale and tar sands resources are present, and to decide which areas will be open to application for commercial leasing, exploration, and development (BLM 2007, pp. 1-2). The final Programmatic Environmental Impact Statement is expected to be published in 2008 (BLM 2008b). A final determination on this proposed delisting rule will not be completed until the programmatic Environmental Impact Statement is finalized; and the Record of Decision will be analyzed as part of our final determination. If tar sands development does occur in the San Rafael Swell area, the loss of significant portions of these populations from this activity is not anticipated because the mineral resources occur along the periphery of the mapped populations and only contain a small percentage of the mapped area. Impacts to individual plants from tar sands development may still occur. These impacts can be a result of vegetation clearing, habitat fragmentation, alteration of topography, changes in drainage patters, erosion, sedimentation from runoff, oil and contaminant spills, fugitive dust, injury or mortality of individual plants, human collection, increased human access, spread of invasive plant species, and air pollution (BLM 2007, pp. 5-77). In addition, we believe the development of tar sands may also impact pollinator species. Given where development is likely to occur and the locations of where plants occur, we expect impacts to the species to be minor. Additionally, protective land management designations apply to the Secret Mesa population. Ninety percent of the BLM portion of the mapped Secret Mesa population occurs within Sid's Mountain and Devils Canyon WSAs (Clark et al. 2005, pp. 16-17; Ivory 2006). As stated previously, WSAs are designated as primitive-class areas and are to be managed free of evidence of human use and to maintain an environment of isolation (BLM 1991a, p. 89). Only temporary uses, and those that create no new surface disturbance nor involve permanent placement of structures, are permitted within WSAs (BLM 1976, p. 2). All WSAs are closed to use and development of minerals (BLM 1991a, pp. 19, 64). *Oil and Gas Exploration and Development* —Oil and gas exploration and development were listed as threats in the listing rule, Recovery Plan, and downlisting rule (50 FR 36089, September 5, 1985; Service 1995, p. 5; 61 FR 31054, 31056, June 19, 1996). Oil and gas leases were located in the area of the last known *Erigeron maguirei* site at the time of the 1985 listing (50 FR 36090, September 5, 1985). Lands within Capitol Reef have been withdrawn from oil and gas exploration and development (Forest Service et al. 2006, p. 56). The BLM and Forest Service lands are open to oil and gas leasing, but the potential for oil and gas is low in the Navajo Sandstone formation where *Erigeron maguirei* occurs (Forest Service et al. 2006, p. 34). Within BLM-administered mineral resources, oil and gas leases that were issued prior to the BLM Resource Management Plan are managed under the stipulations that were in effect when the lease was issued (BLM 1991a, p. 11). Any leases issued after the Plan was signed must comply with the Resource Management Plan (BLM 1991a, p. 11, map 5). The Plan identifies specific management prescriptions by ACEC (BLM 1991a, pp. 14-15). The known *Erigeron maguirei* populations on BLM administered lands occur within the San Rafael Canyon (middle portion), Sid's Mountain, Highway I-70 Scenic Corridor, Muddy Creek, and Seger's Hole ACECs (Clark et al. 2005, pp. 16-17; Ivory 2006). The San Rafael Canyon ACEC (middle portion) is open to leasing, but surface restrictions apply (BLM 1991a, p. 14). According to the Conservation Strategy, BLM will adjust surface disturbance locations to avoid *E. maguirei* for discretionary and leasable minerals including the San Rafael Canyon ACEC (middle portion) (Forest Service et al. 2006, pp. 34, 36-38, 42-44). The remaining ACECs that contain *E. maguirei* populations have no-surface-occupancy stipulations for oil and gas development attached to the lease (BLM 1991a, p. 14). Leasing with “no surface occupancy” means that there will be no development or disturbance whatsoever of the land surface, including establishment of wells or well pads, and construction of roads, pipelines, or powerlines. WSAs with *E. maguirei* populations, including the Sid's Mountain, Devils Canyon, and Muddy Creek WSAs, are open for leasing, but also have no-surface-occupancy stipulations (BLM 1991a, pp. 14, 64). Seven wells have been sited within the mapped Secret Mesa and Coal Wash populations, but all of them have been plugged and abandoned (Clark et al. 2006, p. 9; Utah Division of Oil, Gas, and Mining (UDOGM) 2006a). While limited exploration has occurred, no known oil or gas fields exist within the known *Erigeron maguirei* populations and the potential for development is low (AGRC 2001c; Clark et al. 2006, p. 21; UDOGM 2006b, Forest Service et al. 2006, p. 34). The only gas field in the vicinity of the *E. maguirei* is the Last Chance Gas Field located approximately 11 km (7 mi) west of the Seger's Hole population and 10 km (6 mi) north of the Deep Creek population (AGRC 2001c; Chidsey et al. 2005; Clark et al. 2006, p. 16; UDOGM 2006b). Based on the lack of supporting evidence of viable oil and gas fields within the vicinity of the *E. maguirei* and the land management designations affording protections to the species, oil and gas exploration and development is no longer considered a threat, nor is it likely to become one within the foreseeable future. *Recreational Use* —Recreational use, including off-road vehicles and human foot traffic, have previously been cited as threats to the species (50 FR 36090, September 5, 1985; Service 1995, p. 5; 61 FR 31056, June 19, 1996). *Erigeron maguirei* habitat does not occur within 0.8 km (0.5 mi) of classified or potentially designated motorized routes on Fishlake National Forest lands (Forest Service 2006c, pp. 123, 260-263). According to the Fishlake National Forest Off-Highway Vehicle Route Designation Project, it is unlikely that motorized traffic would infringe upon the *E. maguirei* population on Forest Service land, thereby, providing protections from this threat to this portion of the species' range (Forest Service 2006c, p. 263). Capitol Reef, which comprises 91 percent of the species' total population, is closed to off-road vehicle use (Clark et al. 2006, p. 20). Almost 6 percent of individual plants occur on lands administered by the BLM, of which approximately 80 percent occur within an ACEC and/or WSA (Kass 1990, p. 23; BLM 1991a, pp. 63-64; Clark et al. 2006, p. 18; Ivory 2006). Four of the six *Erigeron maguirei* populations that occur on BLM lands are within the Sid's Mountain, Muddy Creek, and Devils Canyon WSA (Kass 1990, p. 23; Clark et al. 2005, p. 19; Ivory 2006). These WSAs are either closed to motorized vehicles or use is limited to designated roads and trails (BLM 1991a, pp. 63-64, 68, 89; Clark et al. 2006, p. 20). San Rafael Canyon (middle portion), Sid's Mountain, Highway I-70 Scenic Corridor, Muddy Creek, and Seger's Hole ACECs contain five of the six known populations on BLM lands (Clark et al. 2005, pp. 16-17; Ivory 2006). These areas have either been closed to off-road vehicle use or use has been limited to designated roads and trails (BLM 1991a, p. 68). *Erigeron maguirei* is not prone to human disturbance because it grows primarily in cliff crevices and on sandstone domes (Clark 2002, p. 16). From 2000 to 2002, 60 sites were included within a Capitol Reef study on signs of human impacts (Clark 2002, pp. 12-16). Only 2 of these sites showed any signs of human impacts (in both cases foot traffic through the site) (Clark 2002, pp. 15-16). At one site monitored with an electronic counter, visitor use remained fairly stable at 10 visitors per week (Clark et al. 2006, p. 21). After over a decade of monitoring, human trampling may have impacted some individuals, but has not led to a reduction in population survivability (Clark et al. 2006, p. 21). Therefore, impacts from recreation are not a threat to *E. maguirei* populations in the foreseeable future. *Floods* —Two of four Capitol Reef sites monitored between 1992 and 2001 have experienced flash flood events (Van Buren and Harper 2002, p. 1). At one site, a flash flood event likely resulted in 48 plants being lost (Van Buren and Harper 2002, p. 2). However, the species is long lived and shows an ability to replace individuals lost to periodic flooding (Van Buren and Harper 2002, pp. 4-5). Therefore, flood events possessing the potential to meaningfully impact *Erigeron maguirei* populations are unlikely in the foreseeable future. *Summary of Factor A* —Mineral exploration and development, and recreational use were listed as threats to *Erigeron maguirei* in the 1985 listing rule, 1995 Recovery Plan, and 1996 downlisting rule (50 FR 36089, September 5, 1985; Service 1995, p. 5; 61 FR 31054, June 19, 1996). Since the last Federal action, recovery efforts have increased our understanding of the species, its habitat, and its distribution and abundance (61 FR 31054-31058, June 19, 1996; Harper and Van Buren 1998, p. 2; Clark and Clark 1999, p. 47; Clark 2001, p. 3; Clark 2002, pp. 13-14; Clark et al. 2005, p. 17; Clark et al. 2006, p. 17). The species occurs predominantly within the Navajo Sandstone formation, which has low potential for oil and gas development and uranium mining (Forest Service et al. 2006, p. 37). Most mineral resources (like gypsum, tar sands, and oil shale) occur on the periphery of mapped populations and, therefore, are not likely to meaningfully impact any of the populations. Impacts from fragmentation are also expected to be minor. Land management protections throughout most of the species' range and an increased understanding of the species' habitat have reduced the threat of recreational use. While potential impacts to individuals could occur when either accessing the mineral resources or during recreational use, these activities are considered unlikely to materialize in a meaningful way in the foreseeable future, would be limited to small periphery portions of populations, and would not reduce the long-term viability of any of the populations. In addition, land management designations, which have been discussed briefly in this section and will be discussed in more detail under Factor D, will continue to provide protections for *E. maguirei* and its habitat in the foreseeable future. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes *Erigeron maguirei* is not a highly collected or sought-after species. One group was known to be propagating *E. maguirei* for private use (a European group was propagating *E. maguirei* for rock garden enthusiasts) (Forest Service et al. 2006, p. 35; Clark 2007b), but no longer appears to be offering plants for sale (Megown 2007). To date, unauthorized plant and seed collection has not been documented for this species (Forest Service et al. 2006, p. 35). Although the Interagency Rare Plant Team working under the Conservation Strategy will continue to monitor for illegal collection activity (Forest Service et al. 2006, p. 35), we do not believe overutilization to be a current threat to the species, nor likely to be in the foreseeable future. C. Disease or Predation At the time of listing, plants were observed only in rocky areas inaccessible to cattle grazing (50 FR 36090, September 5, 1985), and not in canyon bottoms where plants were originally located in 1940 and 1980. Because the plants could not be relocated in the canyon bottoms, scientists believed that predation due to cattle grazing had reduced the species' distribution (50 FR 36090, September 5, 1985; 61 FR 31056, June 19, 1996; Harper and Van Buren 1998, p. 2). By the time the Recovery Plan was drafted, it concluded that the majority of the *Erigeron maguirei* populations were relatively secure from direct impacts of livestock trampling, but it could be a localized threat in some areas (Service 1995, p. 5). We concluded in the final downlisting rule that concentrations of livestock in localized areas, specifically wash bottoms that have limited vegetation, may result in *E. maguirei* being grazed by livestock (61 FR 31056, June 19, 1996; Kass 1990, p. 28). The species is now known to prefer cliffs or rock crevices that are inaccessible to livestock (Kass 1990, p. 27; Service 1995, p. 2; Clark 2001, p. 15; Clark et al. 2005, pp. 12, 22, 24; Clark et al. 2006, pp. 21-22; Forest Service et al. 2006, p. 56). *Erigeron maguirei* plants within canyon bottoms are small, incidental occurrences, apparently established from seeds dispersed by wind or overland flow from source populations on the mesa tops (Heil 1989, p. 25; Kass 1990, p. 27; Service 1995, p. 2). Although seven of the nine *Erigeron maguirei* populations occur within cattle allotments, all seven of these populations are inaccessible to cattle grazing due to terrain conditions (Forest Service et al. 2006, p. 56). Of the two remaining populations, the Waterpocket Fold population in Capitol Reef, estimated at approximately 20,000 individuals on 42 sites, has a history of cattle trailing (Forest Service et al. 2006, p. 56). Cattle trailing, or moving cattle through the area, has occurred at this site about once every 5 years for the past 100 years (Clark et al. 2006, pp. 21, 25). Cattle trailing has impacted, and is expected to continue to impact, only a few individual plants (Clark et al. 2006, pp. 21, 25). The Conservation Strategy states that Capitol Reef will monitor for potential impacts as well as identify and implement management actions and guidelines that will help maintain long-term sustainability and conservation of the population (Forest Service et al. 2006, pp. 35-37). Additionally, grazing range improvements outside of the range of *E. maguirei* serve to draw cattle further away from *E. maguirei* populations (Clark et al. 2006, pp. 21, 25). Because we now know that *E. maguirei* primarily occurs in areas inaccessible to livestock, in combination with the increased population and distribution, grazing is no longer considered a threat, nor is it likely to become one within the foreseeable future. D. The Inadequacy of Existing Regulatory Mechanisms Prior to the species' 1985 listing, no Federal or State laws protected *Erigeron maguirei* (50 FR 36090, September 5, 1985). Since then, substantial protections have been secured. The BLM Management Plan has provided protection to *E. maguirei* and its habitat in the San Rafael Swell areas (BLM 1991a; 61 FR 31056, June 19, 1996). The completion and implementation of the National Park Service Capitol Reef Management Plan has provided protection to the largest populations of *E. maguirei* and its habitat (61 FR 31056, June 19, 1996). Habitat for *E. maguirei* does not occur within 0.8 km (0.5 mi) of classified or potentially designated motorized routes on Fishlake National Forest lands (Forest Service 2006c, pp. 123, 260-263). In addition, the proposed Fishlake National Forest Management Plan would afford protections to the remaining portions of the Capitol Reef Meta-Population through the designation of the Billings Pass Botanical Area (Forest Service 2006a, pp. 2c-17, 2c-18, 2c-43; Tait 2006). Over 98 percent of known *Erigeron maguirei* plants occur on lands managed by Capitol Reef (91 percent), BLM Price Field Office (6 percent), and Fishlake National Forest (1 percent) (Clark et al. 2006, p. 16) (Table 1). Less than 2 percent of the known population occurs on lands administered by SITLA where no protections for *E. maguirei* exist (Clark et al. 2006, p. 16) (Table 1). On BLM lands, WSAs are managed according to the Interim Management Policy for Lands under Wilderness Review, BLM Handbook 8550-1, until Congress either designates them into the National Wilderness Preservation System or releases them from wilderness study for other purposes (BLM 1976, p. 1). In 1991, BLM recommended to Congress that: 100 percent of the Muddy Creek WSA be made permanent wilderness; 99 percent of the Sid's Mountain WSA be made permanent wilderness; and none of the Devils Canyon WSA be made permanent wilderness (BLM 1991b, pp. 795, 807, 817). The Devils Canyon WSA includes approximately 10 percent of the BLM portion of the Secret Mesa population (Ivory 2007). Given BLM's support for the permanent protection of the majority of the WSAs where *Erigeron maguirei* occurs, we believe Congressional release from the National Wilderness Preservation System is unlikely. Four of the six known populations of *Erigeron maguirei* that occur on lands administered by the BLM are within the Muddy Creek, Sid's Mountain, and Devils Canyon WSA (Kass 1990, p. 23; BLM 1991a, pp. 63-64; Clark et al. 2005, p. 19; Ivory 2006). One-hundred percent of the John's Hole and 50 percent of the Seger's Hole populations occur within the Muddy Creek WSA (Clark et al. 2006, p. 16; Ivory 2006). Ninety percent of the Coal Wash population occurs within the Sid's Mountain WSA (Clark et al. 2006, p. 16; Ivory 2006). Ninety percent of the portion of the Secret Mesa population on BLM lands occurs within the Sid's Mountain and Devils Canyon WSAs (Clark et al. 2006, p. 16; Ivory 2006). The Links Flats population is the only occurrence on BLM lands without any portion of the population protected as a WSA. Table 1 further illustrates the various protections in place on each of these populations. Except for grandfathered uses, the lands under wilderness review must be managed so as not to impair their suitability for preservation as wilderness (BLM 1976, p. 2). Grazing, a non-threat as discussed above, is the only grandfathered use exempt from no surface occupancy stipulations. No surface disturbance stipulations apply to grandfathered mining and mineral extraction. While lands under wilderness review may not be closed to future appropriation under the mining laws, no surface occupancy stipulations apply in order to preserve their wilderness character (BLM 1976, p. 2). Temporary uses are permitted within WSAs as long as they create no new surface disturbance and do not involve permanent placement of structures (BLM 1976, p. 2). The BLM San Rafael Resource Management Plan was approved on May 24, 1991 (BLM 1991a). *Erigeron maguirei* is provided protection through land use planning decisions, including the designation of ACECs (BLM 1991a). Five of the six known populations of *E. maguirei* that occur on lands administered by the BLM are within the San Rafael Canyon (middle portion), Sid's Mountain, Highway I-70 Scenic Corridor, Muddy Creek, and Seger's Hole ACECs (Clark et al. 2005, p. 16; Ivory 2006). Twenty-five percent of Calf Canyon population's range occurs on BLM land, of which 95 percent occurs within the San Rafael Canyon ACEC (middle portion) (Clark et al. 2006, p. 16; Ivory 2006). One-hundred percent of the Coal Wash population occurs within the Sid's Mountain ACEC (Clark et al. 2006, p. 16; Ivory 2006). One-hundred percent of the portion of the Secret Mesa population on BLM land occurs within the Sid's Mountain ACEC or Highway I-70 Scenic Corridor ACEC (Clark et al. 2006, p. 16; Ivory 2006). Ten percent of the John's Hole population's range occurs within the Muddy Creek ACEC (Clark et al. 2006, p. 16; Ivory 2006). Twenty percent of the Seger's Hole population's range occurs within the Seger's Hole ACEC (Clark et al. 2006, p. 16; Ivory 2006). The Links Flats population is the only occurrence on BLM lands without any portion of the population protected as an ACEC. Table 1 further illustrates the various protections in place for each population and highlights where ACECs and WSAs overlap. Special management conditions that apply to all WSAs and ACECs include: Open to mineral entry with plans of operations; avoided for right-of-way grants; excluded from private and commercial use of woodland products, except for limited onsite collection of downed dead wood for campfires; designated as closed to off-road vehicle use when ACEC is within a WSA or WSA has been designated as primitive, otherwise use is limited to designated roads and trails; and they are subject to fire suppression with special conditions (BLM 1991a, pp. 14, 64-69, 81-89). The Highway I-70 Scenic Corridor, Muddy Creek, Seger's Hole, and Sid's Mountain ACECs are open to mineral leasing, but no-surface-occupancy stipulations must be attached to the lease. These areas are also closed for disposal of mineral materials; open to range improvements with special conditions; excluded from land treatments; and are designated as Visual Resource Management Class I (described above) (BLM 1991a, pp. 14, 64, 81-82). An exception to the no-surface-occupancy stipulation may be granted in the Highway I-70 Scenic Corridor ACEC if an environmental assessment concludes that the proposed action would not adversely affect scenic values (BLM 1991a, pp. 14, 81-82). The San Rafael Canyon ACEC (middle portion) is open to mineral leasing with surface restrictions; open for disposal of mineral materials with special conditions; excluded from range improvements and land treatments unless used to protect or improve riparian values; and is designated as Visual Resource Management Class II (BLM 1991a, pp. 14, 64, 81-82). The objective of this class is to retain the existing character of the landscape. The level of change to the characteristic landscape should be low. Management activities may be seen, but should not attract the attention of the casual observer. Any changes must repeat the basic elements of form, line, color, and texture found in the predominant natural features of the characteristic landscape. The Highway I-70 Scenic Corridor, Muddy Creek, San Rafael Canyon (Middle Portion), Seger's Hole, and Sid's Mountain ACECs are managed to protect scenic values (BLM 1991a, pp. 82-85). The Muddy Creek ACEC also contains the Tomsich Butte special emphasis area, which is managed to protect historic values (BLM 1991a, p. 82). The BLM Price Field Office is proceeding with a revision of the 1991 Resource Management Plan (BLM 2004). Final decisions on special designations will be made in the Final Resource Management Plan by the summer of 2008 (BLM 2008a, p. 1). The WSA designations will remain until Congress acts to remove them from this status, or they are determined to be Wilderness Areas. The protective management resulting from ACEC designations could be revised by this process. Not all of the Draft Resource Management Plan alternatives contain ACEC designations. Our final determination on this proposed delisting rule will not be completed before the conclusion of this process and will consider the final decisions regarding these ACECs. National Parks are administered under the provisions of “An Act to establish a National Park Service and for other purposes approved August 25, 1916” (39 Stat. 535), as amended and supplemented (commonly referred to as the “Organic Act” because it created the National Park System) (16 U.S.C. 1, 2-4). The Organic Act specifies that the NPS is to “promote and regulate the use of the Federal areas known as national parks, monuments, and reservations * * * which purpose is to conserve the scenery and the natural and historic objects and the wild life 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.” Capitol Reef National Park, which contains approximately 91 percent of the *Erigeron maguirei* individuals, has land management policies in place that afford protection to the species. Capitol Reef's 1998 Final General Management Plan/Development Concept Plan defines Primitive and Threshold Management Zones within the Park (Capitol Reef 1998, pp. 27-31). All Capitol Reef *E. maguirei* sites are located within these Management Zones (Clark 2006a). Travel through the Primitive Management Zones is limited to cross-country hiking or horseback riding on unimproved trails and routes and travel within the Threshold Management Zone is on paved or two-wheel drive, low clearance, all-weather roads (Capitol Reef 1998, pp. 28-31). Grazing is not allowed within either of these zones (Capitol Reef 1998, pp. 28-31). Within the Primitive Management Zone, developments are not permitted and physical modifications are not allowed except for natural or cultural resource protection (Capitol Reef 1998, p. 29). Limited development is provided in the Threshold Management Zone, but no new major structures or facilities are allowed (Capitol Reef 1998, p. 31). The remoteness of the species and its preference of the Navajo Sandstone formation, which is predominantly on top of mesas and other inaccessible areas, render the habitat for *E. maguirei* safe from development. The 2006 NPS Management Policies Section 4.4.1.1, Plant and Animal Population Management Principles, states that the NPS will maintain all native plant and animal species and their habitats inside parks. In addition, these policies state that “the (National Park) Service will work with other land managers to encourage the conservation of the populations and habitats of these species outside parks whenever possible” (NPS 2006, p. 62). The National Forest Management Act

(1976)directs National Forests to manage habitat to maintain viable populations of existing native and desired nonnative vertebrate species in habitat distributed throughout their geographic range on National Forest System lands (Forest Service 1976). In 1983, U.S. Department of Agriculture Departmental Regulation 9500-4 provided further direction to the Forest Service, expanding the viability requirements to include plant species (U.S. Department of Agriculture 1983, p. 2). While the 2005 Forest Service planning regulations (70 FR 1023, January 5, 2005) would have eliminated species' viability requirements, these regulations were remanded by the court on March 30, 2007 ( *Citizens for Better Forestry* v. *U.S. Department of Agriculture* (Northern District of California 2007)). Because *Erigeron maguirei* was not known to occur on Forest Service lands in 1986, the current Forest Service land management plan does not identify *E. maguirei* as occurring within the National Forest (Forest Service 1986). Less than 1 percent of all known plants occur on National Forest Service lands. Of these, the current mapped range of *E. maguirei* on Forest Service lands is as follows: Approximately 33 percent is designated as a Semi-Primitive Non-Motorized area; approximately 65 percent is designation as an Intensive Livestock Management area; and the remaining 2 percent is designated a Wood Fiber Non-Sawtimber area. In December 2006, the Fishlake National Forest finalized their Off-Highway Vehicle Route Designation Project providing further protections for this area (Forest Service 2006b). Under this plan, motorized routes on Fishlake National Forest lands can not occur within 0.8 km (0.5 mi) of the Deep Creek population (Forest Service 2006c, pp. 123, 260-263). In June 2006, the Dixie and Fishlake National Forests released a draft revision to their land management plan (Forest Service 2006a). The proposed Billings Pass Botanical Area encompasses all the habitat administered by the Forest Service within the Capitol Reef Meta-Population (Forest Service 2006a, pp. 2c-17, 2c-18, 2c-43; Tait 2006). Additional suitable habitat exists outside of this Botanical Area, but it has not yet been surveyed (Tait 2006). The emphasis for this area is on maintaining the endemic plants that live in the area (Forest Service 2006a, pp. 2c-18). The Billings Pass Botanical Area is within the semi-primitive non-motorized use area where travel is restricted to hiking and horseback riding (Forest Service 2006a, pp. 1b-34, 1b-37). At the time of this proposed delisting rule, a schedule was not available for the completion of the final Dixie National Forest and Fishlake National Forest Land Management Plan. The portion of the range owned by SITLA, which contains less than 2 percent of all known or estimated Maguire daisy plants, does not have any special management to benefit *Erigeron maguirei* . SITLA's mission mandates that revenue is the only factor considered in management and sale decisions. About 75 percent of the range of the Calf Canyon population (last surveyed in 1980) is on land owned by SITLA. About 10 percent of the Secret Mesa population occurs on SITLA lands. And about 20 percent of the Link Flats population occurs on SITLA lands. In total, SITLA manages about 2 percent of all known or estimated Maguire daisy plants (see Table 1). *Summary of Factor D:* In conclusion, Federal land management agencies have worked collaboratively since listing to ensure long-term protection of *Erigeron maguirei* and its habitat. Land management plans, policies, and regulations that provide protection to *E. maguirei* are now in place and include:

(1)Capitol Reef Primitive and Semi-Primitive Management Zones;

(2)BLM WSAs and ACECs; and

(3)Forest Service semi-primitive non-motorized designations. If the proposed Fishlake National Forest Botanical Area is finalized, this will provide additional protections for Forest Service's portion of the Capitol Reef Meta-Population. The threat due to inadequacy of existing regulatory mechanisms is no longer applicable. Furthermore, the Interagency Rare Plant Team's collaborative efforts will continue to benefit *Erigeron maguirei* . Most recently, this team developed the Conservation Strategy (Forest Service et al. 2006, pp. 5-6). Through the Conservation Strategy the agencies have committed to survey and monitor *E. maguirei* (and other species) and implement management to ensure the population remains stable after delisting (Forest Service et al. 2006, p. 5). The Conservation Strategy outlines the procedural provisions that will guide Federal agencies' future management of the *E. maguirei* and other species (Forest Service et al. 2006, pp. 24-25). In addition, this Conservation Strategy commits the Federal agencies, to the extent practicable, to implement the conservation actions needed to reduce or eliminate potential threats and to promote the conservation and perpetuation of *E. maguirei* and other species (Forest Service et al. 2006, pp. 38-47). The Conservation Strategy can be viewed in its entirety at: *http://mountain-prairie.fws.gov/species/plants/maguiredaisy/* . Copies can also be obtained from the Utah field office (see FOR FURTHER INFORMATION CONTACT section). E. Other Natural or Manmade Factors Affecting its Continued Existence The 1985 final listing rule mentioned that the genetic viability of *Erigeron maguirei* was thought to be greatly reduced due to the small known population size, geographic separation, and reproductive isolation (50 FR 36090, September 5, 1985). The June 19, 1996, final rule reclassifying *E. maguirei* to threatened also listed inbreeding and loss of genetic variability as potential threats since the species continued to be known only from small, reproductively isolated populations (61 FR 31056, June 19, 1996). As discussed previously, recovery efforts have substantially increased the known number and distribution of *Erigeron maguirei* individuals rangewide. These newly discovered sites provide connectivity between the known sites identified since we published the final listing and downlisting rules and Recovery Plan, thus reducing inbreeding threats posed by geographic separation and reproductive isolation (50 FR 36089-36092, September 5, 1985; Service 1995, p. 5; 61 FR 31054-31058, June 19, 1996; Clark et al. 2006, p. 24). In addition, populations in the Capitol Reef area are separated by short distances and are connected to contiguous habitat (Clark et al. 2006, p. 24). A similar situation exists within the San Rafael Swell area where most suitable habitat occurrences are separated by short distances (Clark et al. 2006, p. 24). Additional survey work here would also likely find additional sites connecting populations and Meta-Populations. Due to the number of populations and individuals of *E. maguirei* found and the inter-connectivity of the habitat, the species is no longer considered to be threatened by a loss of genetic variability. Pesticide use is known to occur within Capitol Reef's Fruita Rural Historic District; a cultural area on the National Register of Historic Places (Alston and Tepedino 2005, p. 10). This area must be managed effectively for fruit production (Alston and Tepedino 2005, p. 10). Management includes spraying apple and pear trees with the pesticide Phosmet in order to control the codling moth ( *Cydia pomonella* ) (Alston and Tepedino 2005, p. 10). Capitol Reef's Integrated Pest Management program states that the use of Phosmet may affect nearby populations of threatened and endangered species, including *Erigeron maguirei* (Alston and Tepedino 2005, pp. 10-11). Alston and Tepedino (2005, p. 11) studied an *E. maguirei* site near the orchard (1.8 km/1.1 mi) and one further away (5.7 km/3.5 mi), finding no significant difference in productivity. No other routine pesticide use is known to occur within the range of *E. maguirei* . Thus, the best scientific data available does not suggest the current use of the Phosmet insecticide is a threat to *E. maguirei* (Alston and Tepedino 2005, p. 61). When the Recovery Plan was written, the demographic stability of the various populations was not known (Service 1995, p. 5). Van Buren and Harper (2002, p. 2) conducted demographic monitoring studies for three *Erigeron maguirei* populations from 1992 to 2001. Their studies have found *E. maguirei* to be relatively long lived with low mortality. The species has the ability to replace individuals at a rate that compensates for mortality (Van Buren and Harper 2002, p. 5). *Summary of Factor E:* In conclusion, reduced genetic variability, inbreeding posed by geographic separation and reproductive isolation, and the use of Phosmet as an insecticide in the Capitol Reef's Fruita Rural Historic District do not threaten with extinction *Erigeron maguirei* in all or a significant portion of the range currently or within the foreseeable future. Conclusion of 5-Factor Analysis As required by the Act, we considered the five potential threat factors to assess whether *Erigeron maguirei* is threatened or endangered throughout all or a significant portion of its range. When considering the listing status of the species, the first step in the analysis is to determine whether the species is in danger of extinction throughout all of its range. If this is the case, then the species is listed or remains listed in its entirety. For instance, if the threats on a species are acting only on a portion of its range, but they are at such a large scale that they place the entire species in danger of extinction, we would list or continue to list the entire species. We have carefully assessed the best scientific and commercial data available and determined there is no information to suggest the species is either in danger of extinction throughout all of its range or likely to become endangered in the foreseeable future throughout all its range. Recovery efforts have identified approximately 164,250 *Erigeron maguirei* individuals over an estimated range of 1,010 square km (390 square mi) (Clark et al. 2006, p. 17). This represents a substantial increase from the time of listing in 1985, when the species was known from 7 individuals on BLM land limited to the upper ends of branches of Pine Canyon (49 FR 30211, July 27, 1984); and from 1996 when the species was downlisted to threatened, when taxonomic revision had increased the total population of *E. maguirei* to approximately 3,000 plants within 5 populations from the San Rafael Swell in Emery County to Capitol Reef in Wayne County (59 FR 46220, September 7, 1994). Current populations appear stable, threats to the species have been addressed, and adequate regulatory mechanisms ensure the species is not currently and is not likely to again become threatened or endangered in all of its range. Having determined that *Erigeron maguirei* does not meet the definition of threatened or endangered throughout all of its range, we must next consider whether there are any significant portions of its range that are in danger of extinction or are likely to become endangered in the foreseeable future. On March 16, 2007, a formal opinion was issued by the Solicitor of the Department of the Interior, “The Meaning of ‘In Danger of Extinction Throughout All or a Significant Portion of Its Range’ ” (U.S. DOI 2007). We have summarized our interpretation of that opinion and the underlying statutory language below. A portion of a species' range is significant if it is part of the current range of the species and is important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species. The first step in determining whether a species is threatened or endangered in a significant portion of its range is to identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that

(i)the portions may be significant and

(ii)the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the range that are unimportant to the conservation of the species, such portions will not warrant further consideration. If we identify any portions that warrant further consideration, we then determine whether in fact the species is threatened or endangered in any significant portion of its range. Depending on the biology of the species, its range, and the threats it faces, it may be more efficient in some cases for the Service to address the significance question first, and in others the status question first. Thus, if the Service determines that a portion of the range is not significant, the Service need not determine whether the species is threatened or endangered there; conversely, if the Service determines that the species is not threatened or endangered in a portion of its range, the Service need not determine if that portion is significant. The terms “resiliency,” “redundancy,” and “representation” are intended to be indicators of the conservation value of portions of the range. Resiliency of a species allows the species to recover from periodic disturbance. A species will likely be more resilient if large populations exist in high-quality habitat that is distributed throughout the range of the species in such a way as to capture the environmental variability within the range of the species. It is likely that the larger size of a population will help contribute to the viability of the species. Thus, a portion of the range of a species may make a meaningful contribution to the resiliency of the species if the area is relatively large and contains particularly high-quality habitat or if its location or characteristics make it less susceptible to certain threats than other portions of the range. When evaluating whether or how a portion of the range contributes to resiliency of the species, it may help to evaluate the historical value of the portion and how frequently the portion is used by the species. In addition, the portion may contribute to resiliency for other reasons—for instance, it may contain an important concentration of certain types of habitat that are necessary for the species to carry out its life-history functions, such as breeding, feeding, migration, dispersal, or wintering. Redundancy of populations may be needed to provide a margin of safety for the species to withstand catastrophic events. This does not mean that any portion that provides redundancy is a significant portion of the range of a species. The idea is to conserve enough areas of the range such that random perturbations in the system act on only a few populations. Therefore, each area must be examined based on whether that area provides an increment of redundancy that is important to the conservation of the species. Adequate representation ensures that the species' adaptive capabilities are conserved. Specifically, the portion should be evaluated to see how it contributes to the genetic diversity of the species. The loss of genetically based diversity may substantially reduce the ability of the species to respond and adapt to future environmental changes. A peripheral population may contribute meaningfully to representation if there is evidence that it provides genetic diversity due to its location on the margin of the species' habitat requirements. Applying the process described above for determining whether a species is threatened in a significant portion of its range, we next addressed whether any portions of the range of *Erigeron maguirei* warranted further consideration. We noted that, as discussed in Factor A, there are several small geographic areas where localized mineral extraction activities remain as a potential threat in the foreseeable future. However, we concluded that these did not warrant further consideration because we believe such activities are unlikely to materialize in a meaningful way and if they do materialize, would be limited to small areas on the periphery of populations and there was no substantial information suggesting that these peripheral areas were significant portions of the range. Therefore, there is no substantial information that *E. maguirei* in these areas were likely to become in danger of extinction in the foreseeable future. In summary, we have determined that none of the existing or potential threats, either alone or in combination with others, are likely to cause *Erigeron maguirei* to become in danger of extinction within the foreseeable future throughout all or any significant portion of its range. On the basis of this evaluation, we propose to remove *E. maguirei* from the List of Endangered and Threatened Plants (50 CFR 17.12). Continued activity by the Interagency Rare Plant Team as well as continued implementation of protective measures provided by land management designations and protections and the Conservation Strategy should ensure *Erigeron maguirei* and its habitat continue to be protected from loss of individuals and environmental degradation. The Post-Delisting Monitoring Plan, discussed below, will allow us and our partners to monitor the species to ensure the status does not deteriorate, and if a decline is detected, to take measures to halt the decline so relisting is not necessary. Effects of the Proposed Rule The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered plants. The prohibitions under section 9(a)(2) of the Act make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, remove and reduce *Erigeron maguirei* to possession from areas under Federal jurisdiction, or remove, cut, dig up, or damage or destroy *E. maguirei* on any other area in knowing violation of any State law or regulation such as a trespass law. Section 7 of the Act requires that Federal agencies consult with us to ensure that any action authorized, funded, or carried out by them is not likely to jeopardize the species' continued existence. If *E. maguirei* is removed from the List of Endangered and Threatened Plants, these prohibitions would no longer apply. Delisting *E. maguirei* is expected to have positive effects in terms of management flexibility to the States and Federal governments. Federal agencies will continue to implement management plans to conserve *E. maguirei* and its habitat. Post-Delisting Monitoring Section 4(g)(1) of the Act requires us to monitor for at least 5 years species that are delisted due to recovery. Post-delisting monitoring refers to activities undertaken to verify that a species delisted due to recovery remains secure from the risk of extinction after the protections of the Act no longer apply. The primary goal of post-delisting monitoring is to monitor the species to ensure that its status does not deteriorate, and if a decline is detected, to take measures to halt the decline so that proposing it as threatened or endangered is not again needed. If at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing. Section 4(g) explicitly requires cooperation with the States in development and implementation of post-delisting monitoring programs. In early 2007, we asked the State of Utah to be a cooperator in Post-Delisting monitoring. In a letter dated March 6, 2007, the State suggested their participation in post-delisting monitoring was unnecessary (Harja 2007). We have prepared a draft Post-Delisting Monitoring Plan for *Erigeron maguirei* (Service 2007). The draft Plan

(1)summarizes the species' status at the time of delisting;

(2)defines thresholds or triggers for potential monitoring outcomes and conclusions;

(3)lays out frequency and duration of monitoring;

(4)articulates monitoring methods including sampling considerations;

(5)outlines data compilation and reporting procedures and responsibilities; and

(6)proposes a post-delisting monitoring implementation schedule including timing and responsible parties. The draft Post-Delisting Monitoring Plan was modeled after the Conservation Strategy and incorporated the Maguire Daisy Survey Protocol developed and tested by the Interagency Rare Plant Team (Clark 2006b). Through this combined proposed delisting rule and notice, we announce the Plan's availability for public review. The draft Post-Delisting Monitoring Plan can be viewed in its entirety at: *http://mountain-prairie.fws.gov/species/plants/maguiredaisy/* . Copies can also be obtained from the Utah field office (see FOR FURTHER INFORMATION CONTACT section). We seek information, data, and comments from the public regarding *Erigeron maguirei* and the post-delisting monitoring strategy. We are also seeking peer review of this Plan concurrently with this comment period. We anticipate finalizing this Plan, considering all public and peer review comments, prior to making a final determination on the proposed delisting rule. Peer Review In accordance with our joint policy published in the **Federal Register** on July 1, 1994 (59 FR 34270), and the Office of Management and Budget's Final Information Quality Bulletin for Peer Review, dated December 16, 2004, we will seek the expert opinions of at least five appropriate and independent specialists regarding the science in this proposed rule and our Post-Delisting Monitoring Plan. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed delisting and the approach laid out in our Post-Delisting Monitoring Plan. We will consider all comments and information received during the comment period on this proposed rule and our Post-Delisting Monitoring Plan during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal. Clarity of the Rule Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand including answers to questions such as the following:

(1)Are the requirements in the document clearly stated?

(2)Does the proposed rule contain technical language or jargon that interferes with its clarity?

(3)Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?

(4)Would the rule be easier to understand if it were divided into more (but shorter) sections?

(5)Is the description of the proposed rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the document?

(6)What else could we do to make the proposed rule easier to understand? Send a copy of any written comments about how we could make this rule easier to understand to Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You also may e-mail the comments to this address *Exsec@ios.doi.gov* . National Environmental Policy Act We have determined that an Environmental Assessment or an Environmental Impact Statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) Office of Management and Budget

(OMB)regulations at 5 CFR 1320 implement provisions of the Paperwork Reduction Act (44 U.S. C. 3501 *et seq.* ). The OMB regulations at 5 CFR 1320.3(c) define a collection of information as the obtaining of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, 10 or more persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that “ten or more persons” refers to the persons to whom a collection of information is addressed by the agency within any 12-month period. For purposes of this definition, employees of the Federal government are not included. The Service may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. This rule does not contain any collections of information that require approval by OMB under the Paperwork Reduction Act. As proposed under the Post-Delisting Monitoring section above, *Erigeron maguirei* populations will be monitored by Capitol Reef, Fishlake National Forest, and the BLM Price Field Office in accordance with the Conservation Strategy. We do not anticipate a need to request data or other information from 10 or more persons during any 12-month period to satisfy monitoring information needs. If it becomes necessary to collect information from 10 or more non-Federal individuals, groups, or organizations per year, we will first obtain information collection approval from OMB. References Cited A complete list of all references cited in this document is available upon request from the Field Supervisor, U.S. Fish and Wildlife Service, West Valley City, Utah (see FOR FURTHER INFORMATION CONTACT ). Author The primary authors of this document are staff located at the Ecological Services Utah Field Office, U.S. Fish and Wildlife Service, West Valley City, Utah (see FOR FURTHER INFORMATION CONTACT ). List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, and Transportation. Proposed Regulation Promulgation Accordingly, we hereby propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. § 17.12 [Amended] 2. Amend § 17.12(h) by removing the entry “ *Erigeron maguirei* ” under “FLOWERING PLANTS” from the List of Endangered and Threatened Plants. Dated: April 16, 2008. Kenneth Stansell, Acting Director, Fish and Wildlife Service. [FR Doc. E8-9282 Filed 5-15-08; 8:45 am] BILLING CODE 4310-55-P 73 96 Friday, May 16, 2008 Notices AGENCY FOR INTERNATIONAL DEVELOPMENT Notice of Public Information Collection Requirements Submitted to OMB for Review SUMMARY: US. Agency for International Development (USAID) has submitted the following information collection to OMB for review and clearance under the Paperwork Reduction Act of 1995. Public Law 104-13. Comments regarding this information collection are best assured of having their full effect if received within 30 days of this notification. Comments should be sent via e-mail to *David_Rostker@omb.eop.gov* or fax to 202-395-7285. Copies of submission may be obtained by calling

(202)712-1365. SUPPLEMENTARY INFORMATION: *OMB Number:* OMB 0412-0576 Form Number: N/A. *Title:* Security firm Survey. *Type of Submission:* Renewal of Information Collection. *Purpose:* It has become increasingly necessary in today's international environment for USAID to employ security firms to assist in providing a secure environment for its overseas employees. Due to the recent event involving the use of deadly force by U.S. Government contractors and/or subcontractors or subgrantees in Iraq, there is now a tremendous amount of interest in how, when and where the Government uses these private security firms. This necessity and resulting heightened scrutiny will continue for the foreseeable future. USAID's Office of Acquisition and Assistance (“OAA”) must therefore closely monitor the types of security service contracts and agreements USAID missions enter into and how these contracts/grants are implemented. Approximately 20 missions have entered into security service contracts/agreements and most of the information OAA requests can be gathered within the mission without burdening the contractors/grantees. Missions will be instructed to contact the contractors/grantees on a limited basis only when the information cannot be obtained internally. *Annual Reporting Burden:* *Respondents:* 20. *Total annual responses:* 20. *Total annual hours requested:* 60 hours. Dated: May 8, 2008. Joanne Paskar, Chief, Information and Records Division, Office of Administrative Services, Bureau for Management. [FR Doc. E8-10981 Filed 5-15-08; 8:45 am] BILLING CODE 6116-01-M DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket No.: ANS-FV-07-0100; FV-08-328] United States Standards for Grades of Frozen Okra AGENCY: Agricultural Marketing Service, USDA. ACTION: Reopening and extension of the comment period. SUMMARY: Notice is hereby given that the comment period for the proposed notice to revise the United States Standards for Grades of Frozen Okra is being reopened and extended. DATES: Comments must be submitted on or before July 15, 2008. ADDRESSES: Written comments may be submitted to: Albert K. Hoover, Processed Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, STOP 0247, 1400 Independence Avenue, SW., Washington, DC 20250-0247; fax

(202)690-1527; *http://www.regulations.gov* ; or e-mail *albert.hoover@usda.gov* . Comments should, reference the date and page of this issue of the **Federal Register** . All comments received will be made available for public inspection, at the address listed above, during regular business hours and on the Internet at *http://www.regulations.gov* . The draft of the United States Standards for Grades of Frozen Okra is available through the address cited above, or *http://www.regulations.gov* . Any comments received regarding this proposed standard will also be posted on these sites. FOR FURTHER INFORMATION CONTACT: Albert K. Hoover at:

(202)720-5021 or by e-mail at: *albert.hoover@usda.gov* . SUPPLEMENTARY INFORMATION: A notice was published on December 12, 2007 in the **Federal Register** (72 FR 238) requesting comments on a proposal to revise the United States Standards for Grades of Frozen Okra. The action would create a change in the grade standards for frozen okra that will include a change from a “score point” grading system to an “individual attribute” grading system. The individual attribute grading system uses sample sizes and acceptable quality levels (AQL's), along with tolerances and acceptance numbers (number of allowable defects), to determine the quality level of a lot. The action will also modify the definition of several terms, in order to bring frozen okra in line with current marketing practices. The proposed standard will provide a common language for trade, a means of measuring value in the marketing of frozen okra1 and provide guidance in the effective utilization of frozen okra. The American Frozen Food Institute

(AFFI)requested that additional time be provided for interested persons to comment on the proposed standard. AFFI believes that reopening the comment period will enable interested parties adequate time to review the proposed changes. After reviewing the request, the Department is reopening the comment period in order to allow sufficient time for all interested persons to file comments. This notice provides for a 60 day period for interested parties to comment on changes to the standards. Authority: 7 U.S.C. 1621-1627. Dated: May 9, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-10845 Filed 5-15-08; 8:45 am] BILLING CODE 3410-02-M DEPARTMENT OF AGRICULTURE Forest Service DEPARTMENT OF THE INTERIOR Bureau of Land Management [WY-920-08-5101-ER-K099; WYW-174598; IDI-35849] Notice of Intent To Prepare an Environmental Impact Statement, for the Gateway West 230/500 kV Transmission Line Project in Idaho and Wyoming and Possible Land Use Plan Amendments AGENCIES: Bureau of Land Management, DOI; and Forest Service, USDA. ACTION: Notice of Intent to prepare an Environmental Impact Statement (EIS), Possible Land Use Plan Amendments, and notice of public scoping meetings. SUMMARY: Pursuant to section 102(2)(C) of the National Environmental Policy Act

(NEPA)of 1969 and in response to a Right-of-Way

(ROW)application filed by Idaho Power and Rocky Mountain Power, the Bureau of Land Management (BLM), Wyoming State Office, U.S. Forest Service (USFS), Caribou-Targhee and Medicine Bow-Routt National Forests, announces their intention to prepare an EIS and conduct public scoping meetings. Idaho Power and Rocky Mountain Power propose to construct electric transmission lines from the proposed Windstar Substation near the Dave Johnston Power Plant at Glenrock, Wyoming to the proposed Hemingway substation near Melba, Idaho, approximately 20 miles southwest of Boise, Idaho. The project is composed of 11 transmission line segments with a total length of approximately 1,250 miles. Authorization of this proposal may result in the amendment of Forest Service and BLM land use plans (Forest Plans, Management Framework Plans, and Resource Management Plans). DATES: This notice initiates the public scoping process. The BLM can best use public input if comments and resource information are submitted by July 03, 2008. To provide the public an opportunity to review the proposal and project information, the BLM expects to hold at least nine meetings in both Idaho and Wyoming along the proposed route. The meetings will be conducted in an “open house” format with the BLM staff and project proponents available to explain project details and gather information from interested individuals or groups. BLM is proposing to host open houses in the following communities: Casper, Kemmerer, Rawlins, and Rock Springs, Wyoming; Boise, Montpelier, Murphy, Pocatello, and Twin Falls, Idaho. The BLM will announce the exact dates, times, and locations for these meetings at least 15 days prior to the event. Announcements will be made by news release to the media, individual letter mailings, and posting on the project Web site listed below. ADDRESSES: You may submit comments or resource information by any of the following methods: • *Web site:* *http://www.wy.blm.gov/nepa/cfodocs/gateway_west* . • *E-mail:* *Gateway_West_WYMail@blm.gov* . • *Mail:* Bureau of Land Management, Gateway West Project, P.O. Box 20879, Cheyenne, WY 82003. • *Courier or Hand Deliver:* Bureau of Land Management, Gateway West Project, 5353 Yellowstone Road, Cheyenne, WY 82009. Documents pertinent to the ROW application may be examined at: • Bureau of Land Management, Wyoming State Office, Public Room, 5353 Yellowstone Road, Cheyenne, WY 82003, Telephone

(307)775-6256. • Bureau of Land Management, Idaho State Office, Public Room, 1387 South Vinnell Way, Boise, Idaho 83709, Telephone

(208)373-3863. FOR FURTHER INFORMATION: For further information and/or to have your name added to our mailing list, contact Walter George, Gateway West Project Manager, Wyoming State Office, P.O. Box 20879, Cheyenne, WY 82003 or by e-mail to *Gateway_West_WYMail@blm.gov* . SUPPLEMENTARY INFORMATION: Idaho Power and Rocky Mountain Power have submitted a ROW application to locate 230 and 500 kV electric transmission lines on federal lands. The proposed lines originate at the proposed Windstar Substation near the Dave Johnston Power Plant at Glenrock, Wyoming and end at the proposed Hemingway Substation, approximately 20 miles southwest of Boise, Idaho. The project is composed of 11 segments with a total length of approximately 1,250 miles. The requested ROW width varies from 150 to 250 feet. Approximately 500 miles or 40% of the total length traverses federally-administered land in Idaho and Wyoming. In Idaho, approximately 300 miles crosses public land administered by seven BLM Field Offices: Bruneau, Burley, Four Rivers, Jarbidge, Owyhee, Pocatello, and Shoshone. In Wyoming, approximately 200 miles crosses public land administered by four BLM Field Offices: Casper, Kemmerer, Rawlins and Rock Springs. An alternate route may be considered that involves approximately one mile of public lands in the Salt Lake Field Office of Utah. In addition, the proposed transmission line route crosses approximately 12 miles in two units of the National Forest System administered by the Forest Service, Department of Agriculture: Two miles in the Douglas Ranger District of the Medicine Bow National Forest in Wyoming and ten miles in the Montpelier Ranger District of the Caribou-Targhee National Forest in Idaho. The proposed route generally follows existing power lines in the Idaho Power and Rocky Mountain Power systems. The proposed route passes near the following towns and locations: • In Wyoming: Casper, Hanna, Rawlins, Rock Springs, and Kemmerer. • In Idaho: Montpelier, American Falls, Twin Falls, Glenns Ferry, Mountain Home, Burley, Shoshone, Jerome, and Boise. BLM is the lead federal agency for the NEPA analysis process and preparation of the EIS. Cooperating agencies identified at this time include: The USFS, National Park Service, Fish and Wildlife Service, State of Wyoming, Cassia County, Idaho, Lincoln and Sweetwater Counties, Wyoming. Other states and local governments will be invited to participate as cooperating agencies. Through public scoping, the BLM expects to identify various issues, potential impacts, mitigation measures, and alternatives to the proposed action. At present, the BLM has identified the following issues and concerns: • Effects on wildlife habitat, plants, and animals including threatened, endangered, and sensitive species. • Effects to visual resources and existing view sheds. • Effects to National Historic Trails and their view sheds. • Effects to Native American traditional cultural properties and respected places. • Effects to soils and water from surface disturbing activities. • Land use conflicts and inconsistency with land use plans. • Effect of the project on local and regional socioeconomic conditions. • Increased potential for introduction and spread of noxious weeds and the ability to efficiently reclaim lands disturbed by transmission line construction or location. The BLM will analyze the proposed action and no action alternatives, as well as other possible alternatives to the proposed power line location and access routes. The BLM encourages you to send us your comments concerning the power line project as proposed and feasible alternative locations, possible mitigation measures, and any other information relevant to the proposed action. Authorization of this proposal may require amendment of one or more Forest Service or BLM land use plans. By this notice, BLM is complying with requirements in 43 CFR 1610.2(c) and the USFS is complying with 36 CFR 219.9 to notify the public of potential amendments to land use plans. If a Resource Management Plan, Management Framework Plan, or Forest Plan Amendment is necessary, BLM and USFS will integrate the land use planning process with the NEPA analysis process for this project. The environmental decision document for the BLM will be signed by the Wyoming State Director, 5353 Yellowstone Road, Cheyenne, Wyoming 82009. Approving officials for the USFS are: Regional Forester, Region 2, 740 Simms Street, Golden, Colorado 80401-4720 and Regional Forester, Region 4, 324 25th Street, Ogden, Utah 84401. Your input is important and will be considered in the environmental analysis process. All comment submittals must include the commenter's name and street address. Comments including the names and addresses of the respondent will be available for public inspection at the above offices during its business hours (7:45 a.m. to 4:30 p.m.), Monday through Friday, except federal holidays. Before including your address, phone number, e-mail address, or any other personal identifying information in your comment, be advised that your entire comment, including your personal identifying information may be publicly available at any time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so. Any persons wishing to be added to a mailing list of interested parties can call or write to BLM, as described in this notice. Additional informational meetings may be conducted throughout the process to keep the public informed of the progress of the EIS. Dated: May 5, 2008. Robert G. Mickelsen, Acting Forest Supervisor. Dated: May 12, 2008. James K. Murkin, Acting State Director. [FR Doc. E8-11060 Filed 5-15-08; 8:45 am] BILLING CODE 4310-22-P DEPARTMENT OF AGRICULTURE Forest Service Environmental Impact Statement for Implementing the Travel Management Rule for the Deschutes and Ochoco National Forests and Crooked River National Grassland, Deschutes & Ochoco National Forests, Deschutes, Crook, Jefferson, Klamath, Grant and Lake Counties, OR AGENCY: Forest Service, USDA. ACTION: Notice of intent to prepare an environmental impact statement. SUMMARY: The U.S. Forest Service will prepare an environmental impact statement

(EIS)on a proposed action to implement 36 CFR parts 212, 251, 261, and 295; Travel Management: Designated Routes and Areas for Motor Vehicle Use; Final Rule (Travel Management Rule). The Deschutes and Ochoco National Forests and the Crooked River National Grassland propose to prohibit motorized travel 1 outside of 300′ of the centerline of those existing designated routes (roads and trails) and areas that currently allow motorized use and that are not otherwise restricted or prohibited for such use by law, regulation, policy, order, Land and Resource Management Plans (Forest Plans), or other past administrative decisions. Class of vehicles (highway licensed and/or non-highway licensed) and season(s) of use that motorized access to dispersed campsites would be allowed would match the adjacent designated route classification and seasonal use period. Special provisions for motorized access only to designated, defined, or existing campsites, and/or prohibitions from motorized access would be applied adjacent to routes and within areas specified on the Proposed Action maps. Identification of routes with special provisions and/or prohibitions and would be based on a set of criteria for establishing exceptions to the general provision for 300′ motorized access adjacent to designated routes in the proposed action. No new motorized access to areas currently prohibited to motorized access would be included in the proposed action. 1 Over the snow vehicles are excluded from this proposed action. The proposed action would amend the Ochoco National Forest Plan by deleting forest plan standards and guidelines that are not consistent with the Travel Management Rule and the proposed action. The proposed action would amend the Deschutes National Forest Plan to make minor (1-2 day) corrections to some motorized season of use dates for consistency with other similar season of use dates, and change some analysis requirements from outdated “implementation units” to watershed or similar sized ecologically-based areas. The alternatives will include the proposed action, no action, and additional alternatives that respond to issues generated through the scoping process. The agency will give notice of the full environmental analysis and decision making process so interested and affected people may participate and contribute to the final decision. *Location:* The proposed action includes all of the Deschutes and Ochoco National Forests and Crooked River National Grassland. These federal lands are located in the vicinity of the central Oregon cities of Bend, Prineville, and Madras. The proposed action applies only to National Forest and Grassland lands, although lands of other than federal ownership lie adjacent or interspersed across the landscape with national forests and grasslands. DATES: Comments concerning the scope of the analysis, issues about the proposed action, or alternatives to the proposed action are most helpful if received within 30 days following the date that this notice appears in the **Federal Register** . ADDRESSES: Send written comments to the Deschutes National Forest at 1001 SW Emkay, Bend, OR 97701 Attention: Mose Harris, Travel Management Team. FOR FURTHER INFORMATION CONTACT: Mose Harris, Writer-Editor, Mollie Chaudet, Peggy Fisher, or Laurel Skelton, at the Deschutes National Forest Headquarters, 1001 SW Emkay, Bend, OR 97702,

(541)383-5300. *Responsible Officials:* The Responsible Officials are John Allen, Forest Supervisor, Deschutes National Forest and Jeff Walter, Forest Supervisor, Ochoco National Forest. SUPPLEMENTARY INFORMATION: *Purpose and Need:* In 2005, the Forest Service published a final rule in the **Federal Register** : 36 CFR Parts 212, 251, 261, and 295; Travel Management: Designated Routes and Areas for Motor Vehicle Use; Final Rule (Travel Management Rule). Currently, the Deschutes and Ochoco National Forests have over 9000 miles of designated routes (roads and trails), and a few designated areas that are open to a variety of highway and non-highway licensed vehicles. There is a variety of laws, regulations, and policies that result in a mixture of areas of the Forests and Grassland that do or do not allow motorized access off of these designated routes. The 2005 Travel Management rule requires that all national forests prohibit motorized travel off of designated routes or outside of designated areas, with some exceptions. The rule was passed because of a number of resource and social concerns related to motorized travel that were detailed in the rule. Prohibiting motorized travel off of existing designated routes without exception would affect the ability of many forest users to access existing “dispersed” or informal campsites, some of which have been used by generations of families. The objective of the proposed action would be to continue to provide for motorized access to dispersed campsites without adversely affecting sensitive resources. There are also some potential safety concerns concerning “mixed” (highway and non-highway licensed vehicles) that could result from limiting all motorized use to the existing designated National Forest System roads and motorized trails on the Forests and Grassland. Currently, many National Forest System roads on the Deschutes and Ochoco National Forests and the Crooked River National Grassland have existing designations that follow state regulation(s) that allow for “mixed” use of highway and non-highway licensed vehicles on roads classified by the Forest Service as “Maintenance Level 2”. Mixed use of some of these roads may pose a risk to reasonable levels of public safety for motorized users. The proposed action would implement the national Travel Management rule while continuing to provide motorized access for dispersed camping without adversely affecting sensitive resources and reasonable levels of public safety on mixed use roads. *Proposed Action:* In accordance with 36 CFR 212, 251, 261, and 295, the Deschutes and Ochoco National Forests and the Crooked River National Grassland propose to prohibit motorized travel 2 outside of those existing designated routes (roads and trails) and areas where it is not already restricted or prohibited by law, regulation, policy, order, Forest Plan direction, or site-specific decision. The Proposed Action would not propose to close any existing designated motorized routes open to motorized travel, although non-highway licensed vehicles would be prohibited from some roads because of safety concerns. The proposed action would amend the Ochoco National Forest Plan by deleting forest plan standards and guidelines that are not consistent with the Travel Management Rule and the proposed action. The proposed action would amend the Deschutes National Forest Plan to make minor (1-2 day) corrections to some motorized season of use dates for consistency with other similar season of use dates, and change some analysis requirements from outdated “implementation units” to watershed or similar sized ecologically-based areas. Existing designated routes and areas for motorized use according to the season of use (open to use time frame) and class of vehicle (highway licensed or non-highway licensed) will be identified on the Deschutes and Ochoco National Forest and Crooked River National Grassland Proposed Action maps. In accordance with provisions of the Travel Management Rule, and with the objective of minimizing resource damage associated with motorized travel off of designated route, the proposed action would: 2 *Over the snow vehicles are excluded from this proposed action.* 1. Continue to allow motorized access for the purpose of ingress and egress to a dispersed campsite within 300′ of the centerline of most of the designated routes shown on the proposed action maps. This approach mirrors the local so-called “green dot” motorized access rules that have been in place adjacent to some designated roads on the forests for many years during hunting seasons. 2. In certain areas with specific resource concerns, special provisions would continue to allow motorized access within 300′ of the centerline of a designated route only for the purpose of accessing designated, defined or existing dispersed campsites. Designated sites are marked with a sign; defined sites limit the extent of the site and motorized access to the site with boulder or wood structures; and existing sites have established fire rings or other evidence of historic use. 3. In riparian areas (those areas adjacent to wetlands, lakes, streams and springs), motorized access would continue to be allowed only to designated, defined, or existing camping sites. Motorized access to existing (not specifically designated or defined) campsites less than 30′ from the edge of the wetland, lake, stream or spring would not be allowed. Motorized vehicles would not be permitted to cross streams except on designated roads or trails open to motorized use. 4. No motorized access to areas with current prohibitions or restrictions on motorized access to dispersed campsites (e.g.: Wilderness Areas, Newberry National Volcanic Monument Caldera Zone, other Management Areas adjacent to open roads but closed to motorized use) or motorized access to dispersed campsites not on National Forest lands would be authorized under this proposal. *Decisions To Be Made:* The Deschutes and Ochoco Forest Supervisors are the Deciding Officials for: Prohibiting motorized travel off of existing designated routes within the Deschutes and Ochoco National Forests and Crooked River National Grassland where such use is not already prohibited by law, regulation, policy, Land and Resource Management Plans, or past administrative action or decision; determining whether or under what conditions motorized access for dispersed camping allowed by the rule would be provided; determining whether or under what conditions mixed use of highway and non-highway licensed vehicles on identified national forest system roads would be allowed; and determining whether, or under what conditions, to amend forest plans. *Possible Alternatives:* The EIS will consider the following alternatives to the Proposed Action:

(1)A “No Action/No Change” Alternative—that would not prohibit motorized travel off of designated routes and would not amend forest plans. This action would not be consistent with the Travel Management Rule.

(2)The proposed action.

(3)Alternatives to the proposed action that are within the scope of the proposed action, meet the purpose and need, are responsive to the comments received during the scoping period, and are approved by the Forest Supervisors for consideration. *Scoping Process:* The Deschutes and Ochoco National Forests have held ten public workshops and thirteen Travel Management Strategy Working Group meetings that were open to the public throughout central Oregon in 2006 and 2007 to help develop the proposed action identified for this Environmental Impact Statement. Additional public meetings to gather comments on the proposed action will be held at the following locations and dates from 5 p.m. until 8 p.m.: • May 19—Sisters High School, 1700 W. McKinney Butte Rd., Sisters, Oregon. • May 20—Madras Senior Center, 860 SW Madison, Madras, Oregon. • May 21—Deschutes National Forest Headquarters, 1001 SW Emkay, Bend, Oregon. • May 27—Ochoco National Forest Headquarters, 3160 NE 3 St., Prineville, Oregon. • May 28—Gilchrist High School, 201 Mountain View Dr., Gilchrist, Oregon. • June 2—Redmond High School, Hugh Hartman Building, 2105 W. Antler Ave., Redmond, Oregon. *Comment.* Public comments about this proposal are requested in order help identify significant issues concerning the proposed action which will help to develop the range of alternatives to the proposed action that are considered and help to focus the analysis. Comments received in response to this notice, including names and addresses of those who comment, will be considered part of the public record on this proposed action and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR parts 215 and 217. Additionally, pursuant to 7 CFR 1.27(d), any person may request the agency to withhold a submission from the public record by showing how the Freedom of Information Act

(FOIA)permits such confidentiality. Persons requesting such confidentiality should be aware that, under FOIA, confidentiality may be granted in only very limited circumstances, such as to protect trade secrets. The Forest Service will inform the requester of the agency's decision regarding the request for confidentiality, and where the request is denied; the agency will return the submission and notify the requester that the comments may be resubmitted with or without name and address within a specified number of days. Dated: May 9, 2008. John Allen, Forest Supervisor, Deschutes National Forest. [FR Doc. E8-10947 Filed 5-15-08; 8:45 am] BILLING CODE 3410-11-M COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List: Addition and Deletions AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Addition to and Deletions from the Procurement List. SUMMARY: This action adds to the Procurement List a product to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes from the Procurement List services previously furnished by such agencies. EFFECTIVE DATE: June 15, 2008. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259. FOR FURTHER INFORMATION CONTACT: Kimberly M. Zeich, Telephone:

(703)603-7740, Fax:

(703)603-0655, or e-mail *CMTEFedReg@jwod.gov.* SUPPLEMENTARY INFORMATION: Addition: On March 21, 2008, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (73 FR15130) of proposed additions to the Procurement List. After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the product listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. *The major factors considered for this certification were:* 1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the product to the Government. 2. The action will result in authorizing small entities to furnish the product to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the product proposed for addition to the Procurement List. End of Certification *Accordingly, the following product is added to the Procurement List:* Product USCG Service/Name Tapes *NSN:* 8455-00-NIB-0016—Name Tapes. *NSN:* 8455-00-NIB-0017—Service Tapes. *NPA:* Lions Industries for the Blind, Inc., Kinston, NC. *Coverage:* C-List for the requirements of the U.S. Coast Guard. *Contracting Activity:* U.S. Coast Guard, Uniform Distribution Center, Woodbine, NJ. Deletions On March 21, 2008, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (73 FR15130) of proposed deletions to the Procurement List. After consideration of the relevant matter presented, the Committee has determined that the services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. *The major factors considered for this certification were:* 1. The action should not result in additional reporting, recordkeeping or other compliance requirements for small entities. 2. The action may result in authorizing small entities to furnish the services to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services deleted from the Procurement List. End of Certification Accordingly, the following services are deleted from the Procurement List: Services *Service Type/Location:* Custodial Services, Social Security Administration, 2401 Lind Street, Quincy, IL. *NPA:* Transitions of Western Illinois, Inc., Quincy, IL. *Contracting Activity:* General Services Administration, Public Buildings Service, Region 5, Chicago, IL. *Service Type/Location:* Janitorial/Custodial Services, U.S. Federal Building and Post Office, Wenatchee, WA. *NPA:* Northwest Center, Seattle, WA. *Contracting Activity:* General Services Administration, Public Buildings Service, Region 10. Dennis Lockard, General Counsel. [FR Doc. E8-11014 Filed 5-15-08; 8:45 am] BILLING CODE 6353-01-P COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Additions AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Proposed Additions to the Procurement List. SUMMARY: The Committee is proposing to add to the Procurement List services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities. *Comments Must Be Received On or Before:* June 15, 2008. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259. For Further Information or to Submit Comments Contact: Kimberly M. Zeich, Telephone:

(703)603-7740, Fax:

(703)603-0655, or e-mail *CMTEFedReg@jwod.gov.* SUPPLEMENTARY INFORMATION: This notice is published pursuant to 41 U.S.C 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions. If the Committee approves the proposed additions, the entities of the Federal Government identified in the notice for each service will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government. 2. If approved, the action will result in authorizing small entities to furnish the services to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information. End of Certification The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed: Services *Service Type/Location:* Custodial Services, Louis Munoz Marin International Airport, TSA Occupied Spaces, Carolina, PR. *Service Type/Location:* Custodial Services, Social Security Administration Building, Plaza Sierra Cayey, Building PR3871ZZ, Cayey, PR. *NPA:* The Corporate Source, Inc., New York, NY. *Contracting Activity:* General Services Administration, Caribbean Property Management Center, Hato Rey, PR. Dennis Lockard, General Counsel. [FR Doc. E8-11013 Filed 5-15-08; 8:45 am] BILLING CODE 6353-01-P DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Docket 32-2008] Foreign-Trade Zone 102—St. Louis County, MO; Application for Expansion An application has been submitted to the Foreign-Trade Zones Board (the Board) by the St. Louis County Port Authority, grantee of FTZ 102, requesting authority to expand the zone in St. Louis County, Missouri. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on May 9, 2008. FTZ 102 was approved on April 27, 1984 (Board Order 251, 49 FR 19540, 5/8/84), and expanded on March 3, 1987 (Board Order 344, 52 FR 7915, 3/13/87). The general-purpose zone consists of one site (484,920 sq. ft.) located at 3901 Union Boulevard in St. Louis. The applicant is now requesting authority to expand the zone to include two additional sites around the Lambert-St. Louis International Airport in St. Louis County: *Proposed Site 2* (492 acres)—NorthPark industrial park located at the northeast corner of Interstates 70 and 170 in the municipalities of Berkeley, Ferguson and Kinloch; and, *Proposed Site 3* (272 acres, 3 parcels)—Hazelwood Commerce Center (170 acres), located on Commerce Center Drive, Hazelwood; Lindbergh Distribution Center (26 acres), 5801 N. Lindbergh Boulevard, Hazelwood; and, Airport Property No. 1 (76 acres), 5260 Banshee Road, St. Louis. The sites will provide warehousing and distribution services to area businesses. No specific manufacturing authority is being requested at this time. Such requests would be made to the Board on a case-by-case basis. In accordance with the Board's regulations, Camille Evans of the FTZ staff is designated examiner to investigate the application and report to the Board. Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is July 15, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to July 30, 2008. A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations: U.S. Department of Commerce, Export Assistance Center, 8235 Forsyth Boulevard, Suite 520, St. Louis, MO 63105; and, Office of the Executive Secretary, Foreign-Trade Zones Board, U.S. Department of Commerce, Room 2111, 1401 Constitution Avenue, NW., Washington, DC 20230. For further information, contact Camille Evans at *Camille_Evans@ita.doc.gov* or

(202)482-2350. Dated: May 9, 2008. Andrew McGilvray, Executive Secretary. [FR Doc. E8-11053 Filed 5-15-08; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Docket 31-2008] Foreign-Trade Zone 176—Rockford, IL; Application for Reorganization/Expansion An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Greater Rockford Airport Authority, grantee of FTZ 176, requesting authority to reorganize and expand the zone in the Rockford, Illinois, area. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on May 9, 2008. FTZ 176 was approved on March 1, 1991 (Board Order 511, 56 FR 10409, 3/12/91), and expanded on February 9, 2005 (Board Order 1368, 70 FR 9613, 2/28/05), and on August 3, 2006 (Board Order 1473, 71 FR 47483, 8/17/06). The zone project currently consists of the following sites (3,110 acres) in the Rockford area: *Site 1* (1,972 acres)—industrial park area of the Chicago Rockford International Airport, 60 Airport Drive, Rockford; *Site 1a* (2 acres)—warehouse facilities at 1635 New Milford School Road and 1129 18th Avenue, Rockford (expires 6/1/09); *Site 2* (6 acres)—warehouse at 500 South Independence Avenue, Rockford; *Site 3* (566 acres, 2 parcels)—CenterPoint Industrial Park (366 acres) located at the intersection of Route 38 and Brush Grove Road; and, Interstate Transportation Center Industrial Park (200 acres) located on the west side of State Highway 38, Rockford; *Site 4* (304 acres, 3 parcels)—LogistiCenter located at the southwest corner of Interstate 39 and Interstate 88, Rochelle; *Site 5* (53 acres)—South Rochelle Industrial Park located on State Highway 251 and Veterans Parkway, Rochelle; *Site 6* (74 acres)—Rolling Hills Industrial Park, 2200 Lakeshore Drive, Woodstock; and, *Site 7* (133 acres)—Crossroads Commerce Center, located at Interstate 88 and Main Street, Rochelle. The applicant is now requesting authority for a reorganization and expansion of the zone, which includes both additions and deletions with an overall increase of 508 acres in total zone space as described below: —Modify existing Site 1 by removing 1105 acres due to changed circumstances, expand to include an additional 441 acres, and to move Temporary Site 1a within Site 1 on a permanent basis (new total acreage—1308 acres); —Remove Site 2 (6 acres) from the zone project due to changed circumstances; —Remove Site 5 (53 acres) from the zone project due to changed circumstances; —Add Proposed Site 8 (8 acres, 2 parcels)—Abilities Center located at 1907 Kishwaukee Street and Counselor Scale Building located at 2000 and 2100 South Kishwaukee Street, Rockford; —Add Proposed Site 9 (16 acres, 2 parcels)—former Essex Wire Plant, 2816 North Main Street, Rockford; —Add Proposed Site 10 (867 acres, 2 parcels)—Park 88 Industrial Park, located at the northwest corner of Peace Road and Fairview Drive and at the southwest corner of Peace Road and Gurler Road, De Kalb; —Add Proposed Site 11 (46 acres, 2 parcels)—Loves Park Corporate Center, located at Bell School Road and Riverside Drive, Loves Park; and, —Add Proposed Site 12 (296 acres, 2 parcels)—Rock 39 Industrial Park, located north and south of Baxter Road, east of Route 39 and west of Mulford Road, Cherry Valley. No specific manufacturing authority is being requested at this time. Such requests would be made to the Board on a case-by-case basis. In accordance with the Board's regulations, Camille Evans of the FTZ staff is designated examiner to investigate the application and report to the Board. Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is July 15, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to July 30, 2008. A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations: U.S. Department of Commerce, Export Assistance Center, 605 Fulton Avenue, Suite E103, Rockford, IL 61103; and, Office of the Executive Secretary, Foreign-Trade Zones Board, U.S. Department of Commerce, Room 2111, 1401 Constitution Avenue, NW., Washington, DC 20230. For further information, contact Camille Evans at *Camille_Evans@ita.doc.gov* or

(202)482-2350. Dated: May 9, 2008. Andrew McGilvray, Executive Secretary. [FR Doc. E8-11051 Filed 5-15-08; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Docket 30-2008] Foreign-Trade Zone 30—Salt Lake City, UT; Application for Reorganization and Expansion An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Salt Lake City Corporation, grantee of Foreign-Trade Zone 30, requesting authority to expand and reorganize its zone in Salt Lake City, Utah, within the Salt Lake City Customs and Border Protection port of entry. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR Part 400). It was formally filed on May 8, 2008. FTZ 30 was approved by the Board on May 26, 1977 (B. O. 119) and currently consists of 33 acres within the 740-acre Salt Lake International Business Park, adjacent to the Salt Lake City International Airport. The applicant is now requesting authority to reorganize and expand the general-purpose zone by deleting the current site and adding 55 acres located at 1105 South 4800 West, Salt Lake City, Utah. The new site is owned by Rockefeller Group Development Corporation and will be designated as Site 2. No specific manufacturing requests are being made at this time. Such requests would be made to the Board on a case-by-case basis. In accordance with the Board's regulations, Claudia Hausler of the FTZ Staff is designated examiner to investigate the application and report to the Board. Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is July 15, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to July 30, 2008. A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations: U.S. Export Assistance Center, 9690 S. 300 W., Suite 201D, Sandy, Utah 84070; Office of the Executive Secretary, Foreign-Trade Zones Board, U.S. Department of Commerce, Room 2111, 1401 Constitution Avenue, NW., Washington, DC 20230. For further information contact Claudia Hausler at *Claudia_Hausler@ita.doc.gov* or (202)482-1379. Dated: May 8, 2008. Andrew McGilvray, Executive Secretary. [FR Doc. E8-11048 Filed 5-15-08; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [Docket 33-2008] Foreign-Trade Zone 167—Brown County, WI; Application for Subzone Status; Marinette Marine Corporation (Shipbuilding) An application has been submitted to the Foreign-Trade Zones Board (the Board) by Brown County, Wisconsin, grantee of FTZ 167, requesting special-purpose subzone status for the shipbuilding facility of Marinette Marine Corporation (MMC), located in Marinette, Wisconsin. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on May 12, 2008. The MMC facility (982 employees/53 acres/365,000 sq.ft.) is located at 1600 Ely Street in Marinette (Marinette County), Wisconsin. The facility is used to construct and repair patrol boats, tug boats, supply vessels, research vessels, anchor handlers, barges, and naval warships for U.S. and international customers. Foreign components that would be used at the MMC shipyard (representing about 20% of finished vessel value) include: marine engines and related parts, reduction gears, propellers, anti-fouling system control panels and anodes, mounting sleeves, fin stabilizers, dynamic positioning systems, winches, pumps, filtering equipment, valves, electronic components, wiring harnesses, generator sets, anchors, bulb flats, doors, windows, sanitary units, manholes, flow meters, chain, and fenders (duty rate range: free-5.0%). FTZ procedures would exempt MMC from customs duty payments on foreign components used in export activity. On domestic sales, MMC could be able to elect the duty rate applicable to oceangoing vessels

(free)for the foreign-origin components noted above. Customs duties also could possibly be deferred or reduced on foreign status production equipment. The manufacturing and repair activity conducted under FTZ procedures would be subject to the “standard shipyard restriction” applicable to foreign-origin steel mill products (e.g., angles, pipe, plate) which requires that full duties be paid on such items. The application indicates that the savings from FTZ procedures would help improve the facility's international competitiveness. In accordance with the Board's regulations, Pierre Duy of the FTZ Staff is designated examiner to investigate the application and report to the Board. Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is July 15, 2008. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to July 30, 2008. A copy of the application and accompanying exhibits will be available for public inspection at each of the following locations: Office of the Port Director, U.S. Customs and Border Protection, 2077 Airport Drive, Green Bay, Wisconsin 54313; and, Office of the Executive Secretary, Foreign-Trade Zones Board, Room 2111, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230-0002. For further information, contact Pierre Duy at *pierre_duy@ita.doc.gov* , or

(202)482-1378. Dated: May 12, 2008. Pierre V. Duy, Acting Executive Secretary. [FR Doc. E8-11055 Filed 5-15-08; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration (C-533-844) Certain Lined Paper Products from India: Extension of Time Limit for Preliminary Results of Countervailing Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: May 16, 2008. FOR FURTHER INFORMATION CONTACT: Jolanta Lawska, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 4 th Street and Constitution Avenue NW, Washington, DC 20230; telephone:

(202)482-8362. SUPPLEMENTARY INFORMATION: Background On October 31, 2007, the U.S. Department of Commerce (“the Department”) published a notice of initiation of the administrative review of the countervailing duty order on certain lined paper products from India covering the period of review February 13, 2006, through December 31, 2006. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews* , 72 FR 61621 (October 31, 2007). The preliminary results are currently due no later than June 1, 2008. Extension of Time Limit for Preliminary Results Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to make a preliminary determination within 245 days after the last day of the anniversary month of an order or finding for which a review is requested. Section 751(a)(3)(A) of the Act further states that if it is not practicable to complete the review within the time period specified, the administering authority may extend the 245-day period to issue its preliminary results by up to 120 days. Due to the complexity of the issues in this administrative review, such as the nature of the programs subject to review, the Department requires additional time to transmit supplemental questionnaires and evaluate responses received. Accordingly, we have determined that it is not practicable to complete the preliminary results of this review within the 245-day period. Therefore, in accordance with section 751(a)(3)(A) of the Act, we are extending the time period for issuing the preliminary results of the review by 120 days. The preliminary results are now due no later than September 29, 2008. The final results continue to be due 120 days after publication of the preliminary results. This notice is issued and published in accordance with sections 751(a)(3)(A) and 777(i) of the Act. Dated: May 9, 2008. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E8-11040 Filed 5-15-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration A-570-891 Hand Trucks and Certain Parts Thereof from the People's Republic of China: Extension of Time Limits for the Final Results of the Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: May 16, 2008. FOR FURTHER INFORMATION CONTACT: Paul Stolz, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:

(202)482-4474. Background The Department of Commerce (“Department”) published an antidumping duty order on hand trucks and certain parts thereof (“hand trucks”) from the People's Republic of China (“PRC”) on December 2, 2004. *See Notice of Antidumping Duty Order: Hand Trucks and Certain Parts Thereof From the People's Republic of China* , 69 FR 70122 (December 2, 2004). On February 2, 2007, the Department published in the **Federal Register** a notice of the initiation of the antidumping duty administrative review of hand trucks from the PRC for the period December 1, 2005, through November 30, 2006. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part* , 72 FR 5005 (February 2, 2007). On January 14, 2008, the Department published in the **Federal Register** the preliminary results of the hand trucks administrative review. *See Hand Trucks and Certain Parts Thereof from the People's Republic of China: Preliminary Results, Partial Intent to Rescind and Partial Rescission of the 2005-06 Administrative Review* , 73 FR 2214 (January 14, 2008). The final results of review are currently due no later than May 13, 2008. Extension of Time Limit of Final Results. Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time period to a maximum of 180 days. Completion of the final results of the administrative review within the 120-day period in this case is not practicable because the Department conducted verification in the administrative review after publication of the preliminary results, and, therefore, needs additional time to complete post-preliminary results verification reports, invite and analyze comments by interested parties on the preliminary results and verification reports, and analyze information gathered at verification. Because it is not practicable to complete this review within the time specified under the Act, we are fully extending the time period for issuing the final results of the administrative review in accordance with section 751(a)(3)(A) of the Act. Therefore, the final results are now due no later than July 14, 2008, the next business day after 180 days from publication of the preliminary results. This notice is published pursuant to sections 751(a) and 777(i) of the Act. Dated: May 9, 2008. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E8-11056 Filed 5-15-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Institute of Standards and Technology [Docket No.: 080505629-8631-01] Interpretation of the International System of Units (the Metric System of Measurement) for the United States AGENCY: National Institute of Standards and Technology, Commerce. ACTION: Notice. SUMMARY: The International System of Units

(SI)(the metric system of measurement) has been recognized for use in the United States since 1866 (15 U.S.C. 204) and is the preferred system of measurement for trade and commerce. The SI was established and is maintained by the General Conference of Weights and Measures and is interpreted or modified for use in the United States by the National Institute of Standards and Technology

(NIST)by authority of the Secretary of Commerce (15 U.S.C. 205). This notice describes the recent modifications to the SI and announces the publication of the latest interpretation of the SI for the United States in the 2008 Edition of NIST Special Publication 330 “The International System of Units.” The 2008 Edition of NIST Special Publication 811 “Guide for the Use of the International System of Units” was also published. Together these publications provide the legal interpretation of and guidelines for the use of the SI in the United States. FOR FURTHER INFORMATION CONTACT: Dr. Ambler Thompson, National Institute of Standards and Technology, Weights and Measures Division, International Legal Metrology Group, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899-2600 or by telephone

(301)975-2333, Fax:

(301)975-8091, or by e-mail at *ambler.thompson@nist.gov.* For information regarding NIST's efforts to coordinate the transition to the International System of Units, contact: Elizabeth Gentry, Metric Coordinator, National Institute of Standards and Technology, Weights and Measures Division, Laws and Metric Group, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899-2600 or by telephone

(301)975-3690, Fax

(301)975-8091, or by e-mail at *TheSI@nist.gov.* SUPPLEMENTARY INFORMATION: The International System of Units (abbreviated as SI in all languages), generally known as the metric system, is the preferred system of measurement for use in trade and commerce in the United States (15 U.S.C. 205b) but use of traditional systems of weights and measures in non-business activities is permitted. The SI was established in 1960 by the General Conference of Weights and Measures (abbreviated CGPM in all languages) and is interpreted, or modified for, the United States by the Secretary of Commerce (15 U.S.C. 205c) who has delegated this authority to the Director of the National Institute of Standards and Technology (NIST). The CGPM is an international organization established by the Meter Convention in 1875 in which more than 50 countries participate. One of the responsibilities of the CGPM is to ensure the SI reflects the latest advances in science and technology and provides a single international language for measurement. In 2006 the CGPM published changes to the SI in the 8th Edition of the Bureau of International Weights and Measures SI publication commonly known as the “SI Brochure.” This notice describes the modifications to the SI and announces the publication of the latest interpretation of the SI for the United States in the 2008 Edition of NIST Special Publication

(SP)330 “The International System of Units (SI).” NIST SP 330 describes the history of the Meter Convention, explains how the International System of Units was developed, and describes the global effort to maintain the system. A comprehensive description of the SI's base units, terminology, units and symbols is also provided. A description of the decimal system and the appropriate multiples and submultiples to be used in expressing units and values is included. Also provided are editorial style guidelines to ensure that SI values and units are properly formatted and clearly written. NIST has also published the 2008 Edition of its Special Publication 811 “Guide for the Use of the International System of Units (SI),” which includes additional guidance on the use of the SI and a broad range of conversion factors. When used together, these publications provide the most current interpretation of the SI and present the latest guidance on the use of the SI in the United States. I. Changes to the International System of Units

(SI)The CGPM adopted the following changes in the 8th Edition

(2006)of the SI Brochure and these have been incorporated in the 2008 Edition of NIST SP 330: a. Full incorporation of the 2000 Supplement which clarified the definition of the second and incorporated the new coherent SI unit with a special name and symbol for the mol s −1, the katal with symbol kat, for expressing values of the quantity catalytic activity; b. A discussion designated as “the set of coherent SI units” was added to clarify that the base and coherent derived units of the SI form a coherent set; c. New section entitled “Units for quantities that describe biological effects” was added in view of their importance for human health and safety; d. New section entitled “Historical note” was added to provide updated information from Section 1.1 of the 7th Edition; e. Appendix 1 was updated to include all the recent decisions of the CIPM and CGPM which impact the SI; f. Appendix 2, which discusses the experimental realization of units, is made available only in electronic form on the BIPM Web site at *http://www.bipm.org/en/si/si_brochure/appendix2/* , so that it may be easily updated between SI brochure versions; and g. New Appendix 3 entitled “Units for photochemical and photobiological quantities,” was added to point out that the SI already includes a SI base unit, the candela, which is considered to be a biological effects unit of importance to industry and human health and safety. II. Modifications to the SI for Its Use in the United States The 2008 Edition of NIST SP 330 differs from the “SI Brochure” to conform to the language and customary use of measurement units in the United States: a. The spelling of English words is in accordance with the United States Government Printing Office Style Manual, which follows Webster's Third New International Dictionary rather than the Oxford Dictionary. Thus, the spellings “meter,” “liter,” and “deca” are used rather than “metre,” “litre,” and “deka” as in the original BIPM English text; b. The name of the unit with symbol t is defined according to 1 t = 10 3 kg which is called “metric ton” rather than “tonne;” c. The four units curie, roentgen, rad, and rem are included in Table 10; d. A number of Editors' notes are added in order to indicate differences of interpretation and to clarify the text; e. A few minor editorial changes are made in order to “Americanize” some phrases. This notice supersedes the last interpretation of the SI that was published in the **Federal Register** on July 28, 1998 (Vol. 63, No. 144—FR 40334—40340). NIST SP 330, NIST SP 811, and other useful information regarding the International System of Units

(SI)are published electronically ( *http://physics.nist.gov/cuu/Units/index.html* and *http://nist.gov/metric* ) and in hard copy. Requests for hardcopies can be sent to: *TheSI@nist.gov.* Although there is no formal comment period, comments and suggestions on the SI are invited and should be sent to Dr. Ambler Thompson at the address previously indicated. Dated: May 9, 2008. James M.Turner, Deputy Director. [FR Doc. E8-11058 Filed 5-15-08; 8:45 am] BILLING CODE 3510-13-P DEPARTMENT OF COMMERCE National Institute of Standards and Technology Judges Panel of the Malcolm Baldrige National Quality Award AGENCY: National Institute of Standards and Technology, Department of Commerce. ACTION: Notice of closed meeting. SUMMARY: Pursuant to the Federal Advisory Committee Act, 5 U.S.C. app. 2, notice is hereby given that the Judges Panel of the Malcolm Baldrige National Quality Award will meet Tuesday, June 3, 2008. The Judges Panel is composed of twelve members prominent in the fields of quality, innovation, and performance excellence and appointed by the Secretary of Commerce. The purpose of this meeting is to discuss the Judging process and Judging process changes for 2008; role of Judges' in award process; overview of scoring data; 2008 Baldrige award cycle; the Judges' survey of applicants; and the Judges' mentoring process. The applications under review by Judges contain trade secrets and proprietary commercial information submitted to the Government in confidence. DATES: The meeting will convene June 3, 2008 at 9 a.m. and adjourn at 4:30 p.m. on June 3, 2008. The entire meeting will be closed. ADDRESSES: The meeting will be held at the National Institute of Standards and Technology, Administration Building, Lecture Room A, Gaithersburg, Maryland 20899. FOR FURTHER INFORMATION CONTACT: Dr. Harry Hertz, Director, National Quality Program, National Institute of Standards and Technology, Gaithersburg, Maryland 20899, telephone number

(301)975-2361. SUPPLEMENTARY INFORMATION: The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on March 4, 2008, that the meeting of the Judges Panel will be closed pursuant to Section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. app. 2, as amended by Section 5(c) of the Government in the Sunshine Act, Pub. L. 94-409. The meeting, which involves examination of Award applicant data from U.S. companies and other organizations and a discussion of this data as compared to the Award criteria in order to recommend Award recipients, may be closed to the public in accordance with Section 552b(c)(4) of Title 5, United States Code, because the meetings are likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential. Dated: May 9, 2008. James M. Turner, Deputy Director. [FR Doc. E8-11034 Filed 5-15-08; 8:45 am] BILLING CODE 3510-13-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No.: 080506632-8633-01] Codeless and Semi-Codeless Access to the Global Positioning System AGENCY: Office of Space Commercialization, National Oceanic and Atmospheric Administration, Department of Commerce. ACTION: Notice and request for comments. SUMMARY: The Office of Space Commercialization seeks comments on a plan to transition the installed base of codeless and semi-codeless Global Positioning System

(GPS)user equipment to next-generation equipment utilizing the modernized civil GPS signals known as L2C and L5. The plan was developed under the auspices of the National Executive Committee for Space-Based Positioning, Navigation, and Timing (PNT). Under the plan, the Department of Defense, as the operator of GPS, will continue enabling codeless/semi-codeless GPS access until December 31, 2020, by which time the L2C and L5 signals will be available on 24 or more modernized GPS satellites. Users should re-equip to use the modernized signals, since codeless/semi-codeless GPS access cannot be assured beyond 2020. DATES: Submit comments on or before June 16, 2008. ADDRESSES: You may submit comments by any of the following methods: E-mail: *jason.kim@noaa.gov.* Fax:

(202)482-4429 (Attn.: Jason Kim). Mail/Courier: Jason Kim, Office of Space Commercialization, U.S. Department of Commerce, 6818 Herbert C. Hoover Building, 14th St. & Pennsylvania Ave., NW., Washington, DC 20230. Due to ongoing delays in mail delivery, respondents are encouraged to submit comments by mail early, or to transmit them electronically. Office hours for courier delivery are 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Jason Kim, Senior Policy Analyst, Office of Space Commercialization, U.S. Department of Commerce,

(202)482-5827. SUPPLEMENTARY INFORMATION: The Global Positioning System

(GPS)is a U.S. Government constellation of 24 or more satellites providing precise positioning, navigation, and timing

(PNT)capabilities, free of direct user fees, on a continuous, worldwide basis. GPS currently transmits PNT information on two radio frequencies known as L1 (1575 MHz) and L2 (1227 MHz). In the future, GPS will also transmit information on a third frequency known as L5 (1176 MHz). GPS transmits encrypted signals known as Y-code or P(Y)-code at the L1 and L2 frequencies. Y-code is intended primarily for U.S. and allied military use, but the civilian community has developed techniques that exploit Y-code at L1 and L2 to achieve significant accuracy gains. Such techniques, collectively known as codeless or semi-codeless GPS access, have been integrated into a range of GPS receivers sold commercially around the world. The Y-code signal was never designed or intended for codeless/semi-codeless access. However, the Department of Defense, as the GPS operator, has historically supported codeless and semi-codeless users by documenting a time-limited commitment to the Y-code signal in the GPS Standard Positioning Service

(SPS)Performance Standard and the Federal Radionavigation Plan. For example, the current GPS SPS Performance Standard (dated October 2001) includes the statement that, “Until such time as a second coded civil GPS signal is operational, the U.S. Government has agreed to not intentionally reduce the current received minimum Radio Frequency signal strength of the P(Y)-coded signal on the L2 link, as specified in ICD-GPS-200C or to intentionally alter the P(Y)-coded signal on the L2 link.” As a result, manufacturers have continued to develop codeless/semi-codeless GPS equipment. The U.S. Government acknowledges the global use of GPS codeless and semi-codeless techniques and plans to maintain the existing GPS L1 Y-code and L2 Y-code signal characteristics until such time that an alternative capability exists to replace it. Since 1999, the Department of Defense has worked closely with the civilian agencies on the National Executive Committee for Space-Based PNT (and its predecessor, the Interagency GPS Executive Board) to add new capabilities to GPS that supplant the need for codeless/semi-codeless access. In 2005, the U.S. Air Force began launching modernized GPS satellites featuring a new civil signal at L2 called L2C. L2C is designed to work in combination with the legacy civil signal (called C/A) at L1 to enable high accuracy without codeless/semi-codeless techniques. In 2009, the Air Force will begin adding a third civil signal called L5 to all new GPS satellites. L5 will also work in combination with L1 C/A and/or L2C to enable high accuracy without codeless/semi-codeless techniques. The National Executive Committee for Space-Based PNT seeks to encourage the development and adoption of next-generation GPS receivers that achieve high accuracy via use of L2C and/or L5 instead of codeless/semi-codeless techniques. To facilitate business decisions and stable planning for equipment developers and end users, the National Executive Committee intends to set a fixed target date for the equipment transition. The National Executive Committee proposes December 31, 2020, as the target date for transitioning the installed base of codeless/semi-codeless GPS equipment to next-generation capabilities utilizing the modernized civil GPS signals. This date is based upon the current launch schedule for the GPS program, which will have 24 GPS satellites transmitting the L2C signal to users by 2016, and 24 GPS satellites transmitting L5 by 2018. The date is also based on preliminary discussions the Office of Space Commercialization has held with GPS equipment manufacturers. The manufacturers indicated that a transition period of approximately ten years should be sufficient to allow the installed base of codeless/semi-codeless GPS users to re-equip with next-generation receivers as part of their normal equipment amortization, obsolescence, and upgrade cycle. Should there be unforeseen delays in the GPS modernization program, the National Executive Committee will reassess the target date for the transition. After the transition date, the characteristics of the Y-code signals transmitted by modernized GPS satellites may change without further notice and may preclude codeless/semi-codeless use of the Y-code signals. However, for those legacy satellites that have no modernized capabilities, codeless/semi-codeless access to Y-code at L1 and L2 will continue until those satellites are decommissioned. The Office of Space Commercialization encourages the GPS user community and manufacturing industry to provide feedback on this proposed plan within the next 30 days. Both domestic and international comments are welcome due to the global nature of GPS use. The National Executive Committee will take the public comments into account as it prepares a final announcement on the date for the codeless/semi-codeless GPS transition. The Department of Defense will publish the final announcement in the **Federal Register** . Concurrent with the final transition plan announcement, the Department of Defense intends to release an update to the SPS Performance Standard that no longer includes a reference to Y-code stability in support of codeless/semi-codeless access. The final announcement would serve to document the government's continued commitment to protect codeless/semi-codeless GPS access through the end of the transition period. Specifically, the final announcement would commit the Department of Defense to maintaining the existing GPS L1 Y-code and L2 Y-code signal characteristics until December 31, 2020. The announcement would also state that should there be unforeseen delays in the GPS modernization program, the date will be reassessed. Instructions for the submission of comments. Page Limit—Submissions should be limited to a maximum length of four pages. Identification and Cover Sheet—Mark each page of the submission with the docket number, submitter's name (and organization, if applicable), date of submission, and contact information (if the submitter chooses to provide it). Additional information—The Office of Space Commercialization encourages interested persons who wish to comment to do so at the earliest possible time. The Office will consider all comments received before the close of the comment period on June 16, 2008. Consideration of comments received after the end of the comment period cannot be assured. The Office will not accept comments accompanied by a request that part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. All comments submitted in response to this notice will be a matter of public record and will be available for public inspection and copying at *http://www.space.commerce.gov.* Authority: NSPD-39; 10 USC Sec 2281(b)(5). Dated: May 14, 2008. Ed Morris, Director, Office of Space Commercialization. [FR Doc. E8-11148 Filed 5-15-08; 8:45 am] BILLING CODE 3510-HR-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XH89 Gulf of Mexico Fishery Management Council (Council); Public Meetings AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meetings. SUMMARY: The Gulf of Mexico Fishery Management Council will convene public meetings. DATES: The meetings will be held June 2-5, 2008. ADDRESSES: The meetings will be held at the Hilton Hobby Hotel, 8181 Airport Drive, Houston, TX 77061. *Council address* : Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL, 33607. FOR FURTHER INFORMATION CONTACT: Wayne E. Swingle, Executive Director, Gulf of Mexico Fishery Management Council; telephone: 813-348-1630. SUPPLEMENTARY INFORMATION: Committees Monday, June 2, 2008-CLOSED SESSION 1 pm-5:30 pm-CLOSED SESSION-Budget/Personnel Committee and Full Council will interview and select an Executive Director. Tuesday, June 3, 2008 8 am-12 pm&1:30 pm-5:30 pm-The Reef Fish Management Committee will meet to discuss Draft of Reef Fish Amendment 30B; Approval of Public Hearing Draft of Reef Fish Amendment 29, including IFQ Referendum Language; Ad Hoc Recreational Red Snapper AP Management and Bycatch Reduction Ideas; Review of NMFS Guidelines for ACL/AMs (if available); SEDAR TOR for Hogfish; and Ecosystem Workshop Report. 5:30 pm-6:30 pm-Informal Question and Answer Session on Gulf of Mexico Fishery Management Issues. Wednesday, June 4, 2008 8:30 am-10:00 am-The Administrative Policy Committee will meet to discuss Report on Lenfest Annual Catch Limits (ACL's). 10:00 am-12 pm-The Joint Reef Fish/Mackerel/Red Drum Management Committee will meet to discuss the Generic Aquaculture Amendment. 1:30 pm-2:30 pm-The Outreach and Education Committee will meet to discuss Proposed Activities. 2:30 pm-4:30 pm-The Ad Hoc Allocation Committee will meet to discuss Development of Guidelines and Principles for Allocations. 4:30 pm-5:30 pm-The Stone Crab/Spiny Lobster Committee will meet to discuss the Spiny Lobster Scoping Meeting Document. Council Thursday, June 5, 2008-The Council meeting will begin at 8:30 am with a review of the agenda and minutes. From 8:45 am-9:45 am on Proposed Rule Integrating Magnuson-Stevens Act and NEPA; From 9:45 am-10:45 am public testimony on exempted fishing permits (EFPs), if any; An Open Public Comment Period regarding any fishery issue of concern will be immediately following completion of public testimony for one hour. People wishing to speak before the Council should complete a public comment card prior to the comment period. The Council will review and discuss reports from the previous two days' committee meetings as follows: 1 pm-3 pm-Reef Fish Management; 3 pm-3:15 pm-Joint Reef Fish/Mackerel/Red Drum; 3:15 pm -3:45 pm-Administrative Policy; 3:45 pm-4 pm-Outreach & Education; 4 pm-4:30 pm-Ad Hoc Allocation; 4:30 pm-4:45 pm-Stone Crab/Spiny Lobster. The Council will discuss Other Business items from 4:45 pm-5:45 pm. The Council will conclude its meeting at 5:45 pm. Although other non-emergency issues not on the agendas may come before the Council and Committees for discussion, in accordance with the M-SFCMA, those issues may not be the subject of formal action during these meetings. Actions of the Council and Committees will be restricted to those issues specifically identified in the agendas and any issues arising after publication of this notice that require emergency action under Section 305(c) of the M-SFCMA, provided the public has been notified of the Council's intent to take action to address the emergency. The established times for addressing items on the agenda may be adjusted as necessary to accommodate the timely completion of discussion relevant to the agenda items. In order to further allow for such adjustments and completion of all items on the agenda, the meeting may be extended from, or completed prior to the date established in this notice. Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Tina Trezza at the Council (see ADDRESSES ) at least 5 working days prior to the meeting. Dated: May 13, 2008. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-10984 Filed 5-15-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XH63 Permits; Foreign Fishing AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of receipt of foreign fishing application; request for comments. SUMMARY: NMFS publishes for public review and comment information regarding a foreign fishing application submitted under provisions of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). DATES: Comments must be received by May 30, 2008. ADDRESSES: Send comments or requests for a copy of the application to NMFS, Office of International Affairs, 1315 East-West Highway, Silver Spring, MD 20910. Comments on this notice may also be submitted by e-mail to *nmfs.foreignfishing@noaa.gov* . Include in the subject line the following document identifier: RIN 0648-XH63. FOR FURTHER INFORMATION CONTACT: Christopher Rogers, Office of International Affairs,

(301)713-9090. SUPPLEMENTARY INFORMATION: Background Section 204(d) of the Magnuson-Stevens Act (16 U.S.C. 1824(d)) provides, among other things, that the Secretary of Commerce (Secretary) may issue a transshipment permit which authorizes a vessel other than a vessel of the United States to engage in fishing consisting solely of transporting fish or fish products at sea from a point within the U.S. Exclusive Economic Zone

(EEZ)or, with the concurrence of a state, within the boundaries of that state to a point outside the United States. In addition, Public Law 104-297, sec. 105(e) directs the Secretary to issue section 204(d) permits for up to 14 Canadian transport vessels to receive Atlantic herring harvested by United States fishermen within the boundaries of the State of Maine or within the portion of the EEZ east of the line 69 degrees 30 minutes west and within 12 nautical miles from the seaward boundary of that State. Section 204(d)(3)(D) of the Magnuson-Stevens Act provides that an application may not be approved until the Secretary determines that “no owner or operator of a vessel of the United States which has adequate capacity to perform the transportation for which the application is submitted has indicated ... an interest in performing the transportation at fair and reasonable rates.” NMFS is publishing this notice as part of its effort to make such a determination with respect to the application described below. Summary of Application NMFS has received an application requesting authorization for 11 Canadian transport vessels to receive transfers of herring from U.S. purse harvesting vessels for the purpose of transporting the herring to processing plants in Canada. The transshipment operations will occur within the boundaries of the State of Maine or within the portion of the exclusive economic zone east of the line 69 degrees 30 minutes west and within 12 nautical miles from the seaward boundary of that State. Interested U.S. vessel owners and operators may obtain a copy of the complete application from NMFS (see ADDRESSES ). Dated: May 9, 2008. Rebecca Lent, Director, Office of International Affairs, National Marine Fisheries Service. [FR Doc. E8-11016 Filed 5-15-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XH75 Marine Mammals; File No. 13392 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of application. SUMMARY: Notice is hereby given that Thomas A. Jefferson, NMFS Southwest Fisheries Science Center, 8604 La Jolla Shores Drive, La Jolla, CA 92037, has applied in due form for a permit to conduct research on bottlenose dolphins ( *Tursiops truncatus* ). DATES: Written, telefaxed, or e-mail comments must be received on or before June 16, 2008. ADDRESSES: The application and related documents are available for review upon written request or by appointment in the following office(s): Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562)980-4001; fax (562)980-4018. Written comments or requests for a public hearing on this application should be mailed to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those individuals requesting a hearing should set forth the specific reasons why a hearing on this particular request would be appropriate. Comments may also be submitted by facsimile at (301)427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period. Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is *NMFS.Pr1Comments@noaa.gov* . Include in the subject line of the e-mail comment the following document identifier: File No. 13392. FOR FURTHER INFORMATION CONTACT: Kate Swails or Carrie Hubard, (301)713-2289. SUPPLEMENTARY INFORMATION: The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 *et seq.* ), and the regulations governing the taking and importing of marine mammals (50 CFR part 216). The proposed research would provide up-to-date information to better understand the levels and impacts of persistent organic pollutants on the California coastal stock of bottlenose dolphins. Up to 60 individuals would be photo-identified and biopsied over the course of the five year permit. Killer whales ( *Orcinus orca* ), harbor porpoises ( *Phocoena phocoena* ), and bottlenose dolphins could be incidentally harassed during the proposed research. The sampling would occur mainly in Monterey Bay but may also occur in other locations along California. In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement. Concurrent with the publication of this notice in the **Federal Register** , NMFS is forwarding copies of this application to the Marine Mammal Commission and its Committee of Scientific Advisors. Dated: May 12, 2008. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E8-11017 Filed 5-15-08; 8:45 am] BILLING CODE 3510-22-S CORPORATION FOR NATIONAL AND COMMUNITY SERVICE Sunshine Act Notice The Board of Directors of the Corporation for National and Community Service gives notice of the following meeting: Date and Time: Tuesday, May 20, 2008, 4 p.m.-5:30 p.m. Place : Corporation for National and Community Service; 8th Floor; 1201 New York Avenue, NW., Washington, DC 20525. Status: Open. Matters To Be Considered: I. Chair's Opening Comments II. Consideration of Previous Meetings Minutes III. CEO Report IV. Committee Reports • MAG Committee • Program Committee • Strategic Partnerships Committee V. Impact of AmeriCorps Week and the Longitudinal Study Presentation by Millicent Williams, Executive Director, Serve DC and Sally Prouty, President and CEO of The Corps Network VI. Public Comments Accomodations: Anyone who needs an interpreter or other accommodation should notify the Corporation's contact person by 5 p.m. on Monday, May 19, 2008. FOR MORE INFORMATION CONTACT: Lisa Guccione, Office of the CEO, Corporation for National and Community Service, 10th Floor, Room 10207, 1201 New York Avenue, NW., Washington, DC 20525. Phone

(202)606-6637. Fax

(202)606-3460. TDD:

(202)606-3472. E-mail: *lguccione@cns.gov* . Dated: May 13, 2008. Frank R. Trinity, General Counsel. [FR Doc. 08-1269 Filed 5-13-08; 4:33 pm]

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