Tap any paragraph to write a margin note. Your notes collect in the Desk below the text and file under cases with @. The side-by-side margin rail opens on a larger screen.

§
Marginalia
Code · REGISTER · 2008-07-03 · PROPOSED RULES · Agricultural Agricultural Marketing Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38172 E8-15075 Agriculture Agriculture Department See Agricultural · Unknown

Unknown. Final rule

64,625 words·~294 min read·/register/2008/07/03/08-1410·

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-2008-07-03.xml --- 73 129 Thursday, July 3, 2008 Contents Agricultural Agricultural Marketing Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38172 E8-15075 Agriculture Agriculture Department See Agricultural Marketing Service See Food and Nutrition Service Alcohol Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38247 E8-15174 Centers Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 38222-38225 E8-15179 E8-15180 E8-15183 Meetings: Study Team for the Los Alamos Historical Document Retrieval and Assessment Project, 38225 E8-15109 NIOSH Dockets: Closed-Circuit Self-Contained Breathing Apparatus et al., 38225-38226 E8-15107 Centers Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38226-38227 E8-15150 E8-15152 Civil Civil Rights Commission NOTICES Meetings;
Sunshine Act, 38172-38173 08-1410 Coast Guard Coast Guard RULES Security Zones: Thea Foss Waterway, Tacoma, Washington, 38120-38122 E8-15207 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Consumer Consumer Product Safety Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38186-38188 E8-15162 E8-15171 Election Election Assistance Commission NOTICES Meetings;
Sunshine Act, 38188 08-1408 Energy Energy Department See Federal Energy Regulatory Commission See Southwestern Power Administration PROPOSED RULES Energy Efficiency Program for Consumer Products: Residential Central Air Conditioners and Heat Pumps, 38159-38160 E8-15142 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38188-38189 E8-15138 EPA Environmental Protection Agency RULES Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes:
Nevada, 38124-38132 E8-15015 California State Implementation Plan: South Coast Air Quality Management District, 38122-38124 E8-14884 Control of Emissions of Air Pollution from Locomotive Engines and Marine Compression-Ignition Engines Less than 30 Liters per Cylinder; Republication: Correction, 38293 Z8-7999 PROPOSED RULES California State Implementation Plan: South Coast Air Quality Management District, 38163-38164 E8-14883 NOTICES Environmental Impact Statements; Availability, etc.:
Availability of Comments, 38202-38203 E8-15159 Weekly receipt, 38204 E8-15144 Experimental Use Permit; Receipt of Revised Application, 38204-38205 E8-15158 Proposed Settlement Agreement, Clean Air Act Citizen Suit, 38205-38207 E8-15157 Public Water System Supervision Program Variance and Exemption Review: Montana, 38207 E8-15147 Equal Equal Employment Opportunity Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38207-38209 E8-15055 E8-15122 E8-15125 Executive Executive Office of the President See Presidential Documents See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Establishment of Low Altitude Area Navigation Route (T-Route):
Southwest Oregon, 38109-38110 E8-15020 PROPOSED RULES Airworthiness Directives: Stemme GmbH & Co. KG Model S10-VT Powered Sailplanes, 38160-38162 E8-15177 FCC Federal Communications Commission RULES Radio Broadcasting Services: Dededo, GU, 38138-38139 E8-14891 Harper, TX, 38139 E8-15148 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-14895 38210-38213 E8-14899 E8-14900 E8-15170 E8-15175 Federal Emergency Federal Emergency Management Agency RULES Final Flood Elevation Determinations, 38132-38138 E8-15121 NOTICES Disaster and Related Determinations:
Illinois, 38237 E8-15126 Minnesota, 38237-38238 E8-15123 Missouri, 38238 E8-15124 Disaster Declarations: Illinois, 38238-38239 E8-15128 Wisconsin, 38239 E8-15127 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38189 E8-15166 Applications: AmerenUE, 38190 E8-15085 Douglas County, OR, 38190-38191 E8-15084 Nushagak Electric and Telephone Cooperative, E8-15082 38191-38192 E8-15086 Blanket Authorizations:
DC Energy Southwest, LLC, 38192-38193 E8-15092 Florida Gas Transmission Co., LLC, 38193 E8-15090 Combined Notice of Filings, 38193-38195 E8-15097 E8-15098 Exempt Wholesale Generator Status: Invenergy Nelson, LLC, et al., 38195 E8-15083 Guidelines for Electronic Filing of Indexes of Customer Reports: Filing via the Internet, 38195 E8-15088 Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorizations: Georgia-Pacific Brewton LLC et al., 38195-38196 E8-15093 Issuances of Orders:
Great Bay Power Marketing, Inc., 38196 E8-15091 Meetings: Workshop on Regulatory Compliance, 38196-38197 E8-15094 Refund Report: Bay Gas Storage Co., Ltd., 38197 E8-15081 Site Visits: Transcontinental Gas Pipe Line Corp., 38197 E8-15089 Federal Highway Federal Highway Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38289 E8-15146 Environmental Impact Statements; Availability, etc.: Riverside and Orange Counties, CA, 38289-38290 E8-15111 FMC Federal Maritime Commission NOTICES Meetings;
Sunshine Act, 38214 08-1414 Fish Fish and Wildlife Service NOTICES Draft Comprehensive Conservation Plan and Environmental Assessment; Availability: Swanquarter National Wildlife Refuge, Hyde County, NC, 38242-38243 E8-15117 Sonoma County Office of Education Habitat Conservation Plan, Dutton Avenue School, City of Santa Rosa, Sonoma County, CA, 38243-38245 E8-15110 Food Food and Drug Administration RULES New Animal Drugs: Cephalosporin Drugs; Extralabel Animal Drug Use; Order of Prohibition, 38110-38113 E8-15052 Food Food and Nutrition Service PROPOSED RULES Food Distribution Program on Indian Reservations:
Resource Limits and Exclusions, and Extended Certification Periods, 38155-38159 E8-15003 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 See Substance Abuse and Mental Health Services Administration NOTICES Training of Latin American Health-Care Workers through the Gorgas Memorial Institute, Republic of Panama, 38214-38221 E8-15120 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency See Transportation Security Administration See U.S.
Customs and Border Protection Housing Housing and Urban Development Department NOTICES Federal Property Suitable as Facilities to Assist the Homeless, 38241-38242 E8-14940 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See National Park Service NOTICES Renewal: Pinedale Anticline Working Group and Task Groups, 38242 E8-15176 IRS Internal Revenue Service RULES Modifications to Subpart F Treatment of Aircraft and Vessel Leasing Income, 38113-38117 E8-14919 PROPOSED RULES Modifications to Subpart F Treatment of Aircraft and Vessel Leasing Income, 38162-38163 E8-14918 International International Trade Administration NOTICES Partial Recision of Antidumping Duty Adminstrative Review, etc.:
Refined Brown Aluminum Oxide from the People's Republic of China, 38173-38174 E8-15262 Justice Justice Department See Alcohol, Tobacco, Firearms, and Explosives Bureau See National Institute of Corrections NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38246-38247 E8-15164 Labor Labor Department See Mine Safety and Health Administration Land Land Management Bureau NOTICES Intent to prepare a Resource Management Plan Amendment and associated Environmental Assessment:
Bureau of Land Management Prineville District Deschutes Resource Area, OR, 38245-38246 E8-15112 Mine Mine Safety and Health Administration NOTICES Petitions for Modification of Existing Mandatory Safety Standards, 38250 E8-15054 National National Council on Disability NOTICES Meetings; Sunshine Act, 38250-38251 08-1407 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38290 E8-15057 Grant of Petition for Decision of Inconsequential Noncompliance:
Hyundai Motor Co., 38290-38291 E8-15130 Meetings: National Emergency Medical Services Advisory Council, 38291-38292 E8-15056 National Institute National Institute of Corrections NOTICES Solicitation for a Cooperative Agreement: Training for Parole Board Members, 38247-38249 E8-15149 NIH National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38227-38228 E8-15072 Government-Owned Inventions; Availability for Licensing, 38228-38233 E8-15178 E8-15201 Meetings:
Methods and Compositions Relating to Detecting Dihydropyrimidine Dehydrogenase; public teleconference, 38233 E8-15182 National Institute of Diabetes and Digestive and Kidney Diseases, E8-15068 38234-38235 E8-15203 National Institute of General Medical Sciences, 38234 E8-15062 National Institute on Alcohol Abuse and Alcoholism, 38233 E8-14924 NIH Blue Ribbon Panel, 38235 E8-15064 NOAA National Oceanic and Atmospheric Administration RULES Atlantic Highly Migratory Species: Renewal of Atlantic Tunas Longline Limited Access Permits;
Atlantic Shark Dealer Workshop Attendance Requirements, 38144-38154 E8-15195 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Reef Fish Fishery of the Gulf of Mexico; Amendment 30A, 38139-38143 E8-15151 NOTICES Meetings: Caribbean Fishery Management Council, 38174-38175 E8-15115 E8-15116 New England Fishery Management Council, 38175 E8-15113 Small Takes of Marine Mammals Incidental to Specified Activities: Harbor Activities Related to the Delta IV/Evolved Expendable Launch Vehicle at Vandenberg Air Force Base, CA, 38176-38180 E8-15154 Taking of Marine Mammals Incidental to Specified Activities:
Construction of the East Span of the San Francisco-Oakland Bay Bridge, 38180-38183 E8-15161 Taking Marine Mammals Incidental to Navy Research, Development, Test, and Evaluation Activities Conducted within the Naval Surface Warfare Center Keyport Range, 38183-38186 E8-15155 National Park National Park Service NOTICES Meetings: Flight 93 National Memorial Advisory Commission, 38246 E8-15114 National Transportation National Transportation Safety Board NOTICES Meetings; Sunshine Act, 38251 E8-15248 Nuclear Nuclear Regulatory Commission NOTICES Environmental Impact Statements;
Availability, etc.: Covance Clinical Research Unit, Inc., Evansville, IN, 38251-38252 E8-15118 Office of U.S. Trade Office of United States Trade Representative See Trade Representative, Office of United States Pension Pension Benefit Guaranty Corporation RULES Rules for Administrative Review of Agency Decisions, 38117-38120 E8-15196 Personnel Personnel Management Office NOTICES Federal Employees Health Benefits Program: 2009 Medically Underserved Areas, 38252-38253 E8-15087 Pipeline Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Hazardous Materials:
Requirements for the Storage of Explosives During Transportation, 38164-38171 E8-15119 Presidential Presidential Documents PROCLAMATIONS Trade: Generalized system of preferences duty-free treatment, modifications, and African Growth and Opportunity Act, beneficiary country designations (Proc. 8272), 38295-38305 08-1413 SEC Securities and Exchange Commission NOTICES Applications: Minnesota Life Insurance Co., et al., 38254-38260 E8-15071 Applications for Deregistration under Section 8(f) of the Investment Company Act of 1940, 38253-38254 E8-15065 Self-Regulatory Organizations:
Options Clearing Corp., 38260 E8-15102 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 38260-38261 E8-15104 International Securities Exchange, LLC, 38261-38265 E8-15069 E8-15101 New York Stock Exchange LLC, 38265-38284 E8-15066 E8-15067 E8-15070 E8-15100 E8-15165 Philadelphia Stock Exchange, Inc., 38284-38288 E8-15099 E8-15103 Southwestern Southwestern Power Administration NOTICES White River Minimum Flows; Proposed Determination of Federal and Non-Federal Hydropower Impacts, 38198-38202 E8-15135 Substance Substance Abuse and Mental Health Services Administration NOTICES Current List of Laboratories Which Meet Minimum Standards to Engage in Urine Drug Testing for Federal Agencies, 38235-38237 E8-15108 Trade Trade Representative, Office of United States NOTICES Generalized System of Preferences:
Results of 2007 Annual Product and Country Practices Reviews, 38253 E8-15156 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: National Task Force to Develop Model Contingency Plans to Deal with Lengthy Airline On-Board Ground Delays, 38288 E8-15145 Transportation Transportation Security Administration NOTICES Transportation Worker Identification Credential:
Enrollment Dates for the Ports of Lafayette, LA; Eureka, CA; Riverhead, NY; Lindenhurst, NY; and Stockton, CA, 38239 E8-15129 Treasury Treasury Department See Internal Revenue Service Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38240 E8-15163 Quarterly IRS Interest Rates Used In Calculating Interest on Overdue Accounts and Refunds on Customs Duties, 38240-38241 E8-15173 Separate Parts In This Issue Part II Executive Office of the President, Presidential Documents, 38295-38305 08-1413 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online rescources, 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. 73 129 Thursday, July 3, 2008 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2008-0038; Airspace Docket No. 07-ANM-16] Establishment of Low Altitude Area Navigation Route (T-Route);
Southwest Oregon AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This action establishes a low altitude Area Navigation
(RNAV)route, designated T-274 in the State of Oregon. T-routes are low altitude Air Traffic Service
(ATS)routes, based on RNAV, for use by aircraft having instrument flight rules (IFR)-approved Global Positioning System (GPS)/Global Navigation Satellite System
(GNSS)equipment. The FAA is taking this action to enhance safety and improve the efficient use of the navigable airspace in Oregon. DATES: *Effective Date:* 0901UTC, September 25, 2008. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Ken McElroy, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: History On February 14, 2008, the FAA published in the **Federal Register** a notice of proposed rulemaking
(NPRM)to establish a low altitude T-route in southwest Oregon (73 FR 8628). Interested parties were invited to participate in this rulemaking effort by submitting written comments on this proposal to the FAA. Four comments were received in response to the NPRM, each supporting the establishment of the route and recommending lower minimum en route altitudes (MEA). The Aircraft Owners and Pilots Association recommended the FAA modify its proposal to ensure that T-274 has a lower MEA than current Very High Frequency Omnidirectional Range
(VOR)Federal airways. Regarding route altitudes, the charted depiction will include MEA requirements which are established in accordance with 14 CFR part 95. The establishment of MEAs is outside the scope of this rule. Low altitude RNAV routes are published in paragraph 6011 of FAA Order 7400.9R signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The low altitude RNAV routes listed in this document will be published subsequently in the Order. The Rule This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 establishes a low altitude RNAV route in southwest Oregon. The route is designated T-274, and will be depicted on the appropriate IFR En Route Low Altitude charts. T-routes are low altitude RNAV ATS routes, similar to VOR Federal airways, but based on GNSS navigation. RNAV-equipped aircraft capable of filing flight plan equipment suffix “G” may file for these routes. The T-route described in this rule will enhance safety, and facilitate more flexible and efficient use of the navigable airspace for en route IFR operations transitioning through mountainous terrain of southwest Oregon. 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. Therefore, this regulation:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under Department of Transportation
(DOT)Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes an RNAV T-route in southwest Oregon. Environmental Review The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a, 311b, and 311k. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment. 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, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE 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 FAA Order 7400.9R, Airspace Designations and Reporting Points, signed August 15, 2007, and effective September 15, 2007, is amended as follows: Paragraph 6011 Contiguous United States Area Navigation Routes T-274 CRAAF to Newport, OR
(ONP)[New] CRAAF Fix (lat. 44°45′37″ N., long. 123°21′06″ W.) Newport, OR
(ONP)VORTAC (lat. 44°34′31″ N., long. 124°03′38″ W.) Issued in Washington, DC, on June 23, 2008. Ellen Crum, Acting Manager, Airspace and Rules Group. [FR Doc. E8-15020 Filed 7-2-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 530 [Docket No. FDA-2008-N-0326] New Animal Drugs; Cephalosporin Drugs; Extralabel Animal Drug Use; Order of Prohibition AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is issuing an order prohibiting the extralabel use of cephalosporin antimicrobial drugs in food-producing animals. We are issuing this order based on evidence that extralabel use of these drugs in food-producing animals will likely cause an adverse event in humans and, as such, presents a risk to the public health. DATES: This rule becomes effective October 1, 2008. Submit written or electronic comments on this document by September 2, 2008. ADDRESSES: You may submit comments, identified by [Docket No. FDA-2008-N-0326], by any of the following methods: *Electronic Submissions* Submit electronic comments in the following way: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. *Written Submissions* Submit written submissions in the following ways: • FAX: 301-827-6870. • Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal, as described previously, in the ADDRESSES portion of this document under *Electronic Submissions* . *Instructions* : All submissions received must include the agency name and Docket No(s). and Regulatory Information Number
(RIN)(if a RIN number has been assigned) for this rulemaking. All comments received may be posted without change to *http://www.regulations.gov* , including any personal information provided. For additional information on submitting comments, see the “Comments” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket* : For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* and insert the docket number(s), found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: Neal Bataller, Center for Veterinary Medicine (HFV-230), Food and Drug Administration, 7519 Standish Pl., Rockville, MD, 20855, 240-276-9200, e-mail: *neal.bataller@fda.hhs.gov.* SUPPLEMENTARY INFORMATION: I. Background A. AMDUCA The Animal Medicinal Drug Use Clarification Act of 1994 (AMDUCA) (Public Law 103-396) was signed into law on October 22, 1994. It amended the Federal Food, Drug, and Cosmetic Act (the act) to permit licensed veterinarians to prescribe extralabel uses of approved animal and human drugs in animals. In the **Federal Register** of November 7, 1996 (61 FR 57732), we published the implementing regulations (codified at part 530 (21 CFR part 530)) for AMDUCA. The sections regarding prohibition of extralabel use of drugs in animals are § § 530.21, 530.25, and 530.30. These sections describe the basis for issuing an order prohibiting an extralabel drug use in animals and the procedure to be followed in issuing an order of prohibition. We may issue a prohibition order if we find that extralabel use of a drug in animals presents a risk to the public health. Under § 530.3(e), this means that we have evidence demonstrating that the use of the drug has caused, or likely will cause an adverse event. Section 530.25 provides for a public comment period of not less than 60 days. It also provides that the order of prohibition become effective 90 days after the date of publication, unless we revoke or modify the order, or extend the period of public comment. The list of drugs prohibited from extralabel use is found in § 530.41. B. Cephalosporins Cephalosporins are members of the β-lactam class of antimicrobials. These antimicrobials work by targeting synthesis of the bacterial cell wall, resulting in increased permeability and eventual hydrolysis of the cell. Members of the cephalosporin class have a β-lactam ring fused to a sulfur-containing ring-expanded system (Ref. 1). Certain cephalosporins are currently approved for use in a number of animal species. These approved uses include the treatment of respiratory disease in cattle, swine, sheep, and goats, as well as acute bovine interdigital necrobacillosis, acute metritis, and clinical and sub-clinical mastitis in cattle. They are also approved for the control of bovine respiratory disease, and the control of early mortality associated with *Escherichia coli* infections in day-old chicks and poults. Furthermore, approved animal uses of cephalosporins include the treatment of skin and soft tissue infections in dogs and cats, genitourinary tract infections (cystitis) in dogs, and respiratory tract infections in horses. Cephalosporins are also some of the most widely used antimicrobial agents in human medicine. Older agents are widely used as therapy for skin and soft tissue infections caused by *Staphylococcus aureus* and *Streptococcus pyogenes* , as well as treatment of upper respiratory tract infections, intra-abdominal infections, pelvic inflammatory disease, and diabetic foot infections. Newer cephalosporins, with or without aminoglycosides, have been considered drugs of choice for serious infections caused by *Klebsiella* , *Enterobacter* , *Proteus* , *Providencia* , *Serratia* , and *Haemophilus* spp. These cephalosporins are also used to treat systemic salmonellosis, although not specifically approved for this purpose. Fourth generation cephalosporins are indicated for treatment of urinary tract infections, febrile neutropenia, intra-abdominal infections, pneumonia, and skin and skin structure infections (Ref. 2). FDA is concerned that the extralabel use of cephalosporins in food-producing animals is likely to lead to the emergence of cephalosporin-resistant strains of foodborne bacterial pathogens. If these drug-resistant bacterial strains infect humans, it is likely that cephalosporins will no longer be effective for treating disease in those people. Therefore, FDA is issuing an order prohibiting the extralabel use of cephalosporins because, as discussed in section II of this document, the agency has determined that such extralabel use will likely cause an adverse event and as such presents a risk to the public health. II. Basis for Prohibiting the Extralabel Use of Cephalosporins A. Cephalosporin-Resistant Zoonotic Foodborne Bacteria A recent review of β-lactam resistance in bacteria of animal origin states that an emerging issue of concern is the increase in reports of broad-spectrum β-lactamases (CMY-2 and CTX-M) (Ref. 3). Acquired resistance to β-lactams in animal isolates has been observed in surveillance programs such as the Canadian Integrated Program for Antimicrobial Resistance Surveillance (CIPARS), Danish Integrated Antimicrobial Resistance Monitoring and Research Programme (DANMAP), and the U.S. National Antimicrobial Resistance Monitoring System (NARMS). The 2005 European Antimicrobial Resistance Surveillance System (EARSS) report indicated that most European countries reported less than 5 percent resistance to third generation cephalosporins in foodborne pathogens including *Enterococcus faecalis* , *E. faecium* , and *E. coli* . However, the report noted that resistance was rising in 23 of 28 countries, with significant trends identified for 15 countries. The EARSS report states that third generation cephalosporin resistance appears to be increasing rapidly, even in countries with formerly very low levels of resistance (Ref. 4). Ceftiofur is a third generation cephalosporin approved for certain uses in animals. Since 1997, the NARMS program has monitored ceftiofur resistance in *Salmonella* isolated from food-producing animals at slaughter. In 1997, no isolates from cattle or swine were resistant to ceftiofur, while ceftiofur resistance among isolates from chickens and turkeys was 0.5 percent and 3.7 percent, respectively. By 2006, the prevalence of ceftiofur resistance among *Salmonella* slaughter isolates increased to 18.8 percent for cattle, 2.0 percent for swine, 12.8 percent for chickens, and 5.3 percent for turkeys (Ref. 5). Food-producing animals have been shown to be a source of resistant *Salmonella* infections in humans (Ref. 6). Data collected as part of NARMS have shown an increase in multi-drug resistance among *Salmonella* isolates from humans, including resistance to third generation cephalosporins. The prevalence of ceftiofur resistance among non-Typhi *Salmonella* isolates from humans rose from 0.2 percent in 1996 to 3.4 percent in 2004. A similar trend was observed over this same period (i.e., 1996 to 2004) for decreased susceptibility to ceftriaxone, a third generation cephalosporin approved for use in humans (Ref. 7). Although ceftiofur is not used in human medicine, the observed trend of increasing resistance to this drug in human isolates highlights concerns about the movement of foodborne bacterial pathogens between animals and humans. In particular, as discussed in more detail in this document, resistance to certain cephalosporins is of public health concern in light of the evidence of cross-resistance among drugs in the cephalosporin class. Expanded-spectrum cephalosporins (e.g., ceftriaxone and cefotaxime) are the antimicrobial agents of choice for invasive *Salmonella* infections of pediatric patients (Ref. 8). FDA believes that the surveillance data cited supports the finding that certain cephalosporin use in animals is likely contributing to an increase in cephalosporin-resistant human pathogens. B. Scope of Order of Prohibition The cephalosporins are one of the most diverse classes of antimicrobials, and have been subject to several different classification schemes, including those using chemical structure, microbial activity, pharmacokinetics, or marketing date to divide the various molecular entities into distinct groups. While there is considerable overlap among proposed schemes, individual cephalosporin drugs do not always fall into the same groups in all classifications. For example, a commonly used scheme that classifies cephalosporins into “generations” provides some general idea of the first marketing date for the various cephalosporins. However, classification by generation does not necessarily group together cephalosporins with similar microbiological or pharmacokinetic characteristics. Therefore, because classification into “generations” is not based on specific properties of individual cephalosporins, there can be disagreement on which drugs belong in which generation. FDA considered the possibility of limiting the order of prohibition to certain individual cephalosporin drugs or to certain generations of cephalosporins. However, given the potential for confusion regarding the classification of individual cephalosporin drugs into various generations, FDA concluded that it would be problematic to define the scope of the prohibition based on cephalosporin “generation.” Furthermore, as discussed in more detail in this document, data regarding mechanisms by which bacteria become resistant to cephalosporins have demonstrated cross-resistance among various individual cephalosporin drugs and among various generations of cephalosporin drugs. In general, there are three mechanisms by which bacteria become resistant to antimicrobial agents:
(1)Alteration of the antimicrobial target,
(2)efflux of the antimicrobial or changes in permeability of the bacterial cell, and
(3)inactivation of the antimicrobial agent itself. Gram negative bacterial resistance to cephalosporins occurs mainly through inactivation of the cephalosporin by β-lactamases. These enzymes can be both innate and acquired (Ref. 9). Among bacteria of human health concern, the two most important classes of β-lactamase enzymes are the AmpC cephalosporinases and the extended-spectrum β-lactamases (ESBL). AmpC enzymes are found on the chromosome of most *Enterobacteriaceae* , and are also currently found on promiscuous plasmids in *Salmonella* and *E. coli* . These enzymes provide resistance to first, second, and third generation cephalosporins. “Fourth generation” cephalosporins are active in vitro against AmpC producing bacteria, but there is some disagreement as to the clinical significance of that activity. The AmpC enzymes are currently the predominant β-lactamases associated with *Salmonella* collected from animals and humans in the United States displaying resistance to ceftiofur and decreased susceptibility to ceftriaxone (Ref. 3). ESBLs present in bacteria of human health concern include members of the TEM, SHV, and CTX-M families. These enzymes are plasmid mediated and have the potential to provide resistance to all cephalosporins. Different ESBLs hydrolyze different cephalosporins at different efficiencies and rates, thus leading to varying patterns of in vitro susceptibility. However, although a particular ESBL may not raise the minimum inhibitory concentration
(MIC)for a given cephalosporin to a level above the breakpoint for resistance, these strains commonly prove to be resistant in vivo (Ref. 9). Therefore, there are specific guidelines for screening bacterial isolates for the presence of ESBLs when MIC's fall in the susceptible range. Any bacterial isolate which produces either an AmpC enzyme or an ESBL is reported to clinicians as resistant to all cephalosporins even though susceptibility testing may show in vitro susceptibility to some of the cephalosporins (Ref. 10). Thus, regardless of in vitro susceptibility results, the effect of resistance mediated by an AmpC enzyme or ESBL is that the organism is treated as if it is cross-resistant to all cephalosporins. In a review of the CTX-M family of ESBLs, Livermore et al. (Ref. 11) noted that until the late 1990s, European surveys found the TEM and SHV families of ESBLs almost exclusively. CTX-M enzymes were recorded rarely, although large outbreaks of *Salmonella Typhimurium* with CTX-M-4 and CTX-M-5 were reported in Latvia, Russia, and Belarus in the mid 1990s. However, CTX-M enzymes are now the predominant ESBLs in many European countries, and *E. coli* has joined *Klebsiella pneumoniae* as a major host. CTX-M enzymes are supplanting TEM and SHV in East Asia as well as in Europe. Only in North America do TEM and SHV still predominate, although CTX-M enzymes have been occasionally detected. Once mobilized, CTX-M enzymes can be hosted by many different genetic elements, but are most often found on large multi-drug resistance plasmids. Therefore, FDA is concerned that if CTM-X becomes prevalent in the United States, as has occurred in other countries, cephalosporin resistance may escalate. Given that β-lactamases have been identified in zoonotic bacteria of human health concern, and given that β-lactamases can impart cross-resistance among cephalosporins (Ref. 12), FDA concluded that measures to prohibit extralabel use should be directed at the entire cephalosporin class of drugs. C. Extralabel Use of Cephalosporins in Animals As summarized previously, certain cephalosporins are currently approved for use in a number of animal species for a variety of indications. However, under the provisions of AMDUCA, cephalosporins that are approved for use in animals or humans may be used in an extralabel manner in animals provided certain conditions are met. Although few data are available regarding the extent to which such extralabel use currently occurs in the various food-producing animal species, evidence exists that extralabel use is occurring. FDA conducted inspections at U.S. poultry hatcheries in 2001 and examined records relating to the hatcheries' antimicrobial use during the 30-day period prior to inspection. FDA found that six of the eight hatcheries inspected that used ceftiofur during that period were doing so in an extralabel manner (Ref. 13). For example, ceftiofur was being administered at unapproved dosing levels or by unapproved methods of administration. In particular, ceftiofur was being administered by egg injection, rather than by the approved method of administering the drug to day-old chicks. As is recognized for the use of antimicrobial drugs in general, the use of cephalosporins provides selection pressure that favors expansion of resistant variants. FDA believes the extralabel use of cephalosporins likely will contribute to the emergence of resistance and compromise human therapy. Given the importance of the cephalosporin class of drugs for treating disease in humans, FDA believes that preserving the effectiveness of such drugs is critical. Therefore, FDA believes it is necessary to take action to limit the extent to which extralabel use of cephalosporin in animals may be contributing to the emergence of resistant variants. FDA is particularly concerned about the extralabel use of cephalosporins in food-producing animals given that such animals are known reservoirs of foodborne bacterial pathogens such as *Salmonella* . Based on information regarding cephalosporin resistance as discussed previously, FDA believes it is likely that the extralabel use of cephalosporins in food-producing animals is contributing to the emergence of cephalosporin-resistant zoonotic foodborne bacteria. Therefore, FDA has determined that such extralabel use likely will cause an adverse event and, as such, presents a risk to the public health. III. Comments Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments regarding this document. Submit a single copy of electronic comments or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. Please note that on January 15, 2008, the FDA Division of Dockets Management Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic comments or submissions will be accepted by FDA only through FDMS at *http://www.regulations.gov.* IV. Order of Prohibition Therefore, I hereby issue the following order under § § 530.21 and 530.25. We find that extralabel use of the cephalosporin class of antimicrobial drugs in food-producing animals likely will cause an adverse event, which constitutes a finding that extralabel use of these drugs presents a risk to the public health. Therefore, we are prohibiting the extralabel use of the cephalosporin class of antimicrobial drugs in food-producing animals. V. References The following references have been placed on display in the Division of Dockets Management (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. 1. Livermore, D. M. and L. D. Williams, “β-Lactams: Mode of Action and Mechanisms of Resistance,” pp. 502-578, Victor Lorian (ed.), *Antibiotics in Laboratory Medicine,* Williams & Wilkins, Baltimore, 1991. 2. U.S. Food and Drug Administration, Maxipime (cefepime hydrochloride) for injection, NDA 50-679/S-021, *http://www.fda.gov/medwatch/SAFETY/2003/03MAR_PI/Maxipime_PI.pdf* (accessed March 13, 2007). 3. Li, X. Z., M. Mehrotra, S. Ghimire, and L. Adewoye, “β-Lactam Resistance and β-Lactamases in Bacteria of Animal Origin,” *Veterinary Microbiology* , 121:197-214, 2007. 4. European Antimicrobial Resistance Surveillance System, EARSS Annual Report 2005, pp. 1-147, Bilthoven, The Netherlands, 2006. 5. U.S. Department of Health and Human Services, National Antimicrobial Resistance Monitoring System/Enteric Bacteria (NARMS/EB) Salmonella Annual Veterinary Isolates Data, U.S. Department of Agriculture, *http://www.ars.usda.gov/Main/docs.htm?docid=6750&page=4* , 2006. 6. Holmberg, S. D., J. G. Wells, and M. L. Cohen, “Animal-to-Man Transmission of Antimicrobial-Resistant *Salmonella* : Investigations of U.S. Outbreaks, 1971-1983,” *Science* , 225:833-835, 1984. 7. CDC, “National Antimicrobial Resistance Monitoring System for Enteric Bacteria (NARMS): Human Isolates Final Report,” 2004, Atlanta, GA, U.S. Department of Health and Human Services, CDC, 2007. 8. Giles, W.P. , A. K. Benson, M. E. Olson, R. W. Hutkins, J. M. Whichard, P. L. Winokur, and P. D. Fey, “DNA Sequence Analysis of Regions Surrounding blaCMY-2 From Multiple *Salmonella* Plasmid Backbones,” *Antimicrobial Agents and Chemotherapy* , 48:2845-2852, 2004. 9. Livermore, D. M., “Beta-Lactamases in Laboratory and Clinical Resistance,” *Clinical Microbiology Review* , 8:557-584, 1995. 10. Clinical and Laboratory Standards Institute, Performance Standards for Antimicrobial Susceptibility Testing: Sixteenth Informational Supplement, M100-S16, Wayne, PA, USA: CLSI, 2006. 11. Livermore, D. M., R. Canton, M. Gniadkowski, P. Nordmann, G. M. Rossolini, G. Arlet, J. Ayala, T. M. Coque, I. Kern-Zdanowicz, F. Luzzaro, L. Poirel, and N. Woodford, “CTX-M: Changing the Face of ESBLs in Europe,” *Journal of Antimicrobial Chemotherapy* , 59:165-174, 2007. 12. Jacoby, G. A. and L. S. Munoz-Price, “The New B-Lactamases,” *New England Journal of Medicine* , 352:380-391, 2005. 13. U.S. Food and Drug Administration, Center for Veterinary Medicine, unpublished report, Summary of Data From Hatchery Inspections Conducted September-October 2001, April 15, 2002. List of Subjects in 21 CFR Part 530 Administrative practice and procedure, Advertising, Animal drugs, Labeling, Reporting and recordkeeping requirements. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Director of the Center for Veterinary Medicine, 21 CFR part 530 is amended as follows: PART 530—EXTRALABEL DRUG USE IN ANIMALS 1. The authority citation for 21 CFR part 530 continues to read as follows: Authority: 15 U.S.C. 1453, 1454, 1455; 21 U.S.C. 321, 331, 351, 352, 353, 355, 357, 360b, 371, 379e. 2. In § 530.41, add paragraph (a)(13) to read as follows: § 530.41 Drugs prohibited for extralabel use in animals.
(a)* * *
(13)Cephalosporins. Dated: June 24, 2008. Bernadette Dunham, Director, Center for Veterinary Medicine. [FR Doc. E8-15052 Filed 7-2-08; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9406] RIN 1545-BH03 Modifications to Subpart F Treatment of Aircraft and Vessel Leasing Income AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final and temporary regulations. SUMMARY: This document contains final and temporary regulations addressing the treatment of certain income and assets related to the leasing of aircraft or vessels in foreign commerce under sections 367, 954, and 956 of the Internal Revenue Code (Code). The regulations reflect statutory changes made by section 415 of the American Jobs Creation Act of 2004 (AJCA). In general, the regulations will affect United States shareholders of controlled foreign corporations that derive income from the leasing of aircraft or vessels in foreign commerce and U.S. persons that transfer property subject to these leases to a foreign corporation. The text of these temporary regulations also serves as the text of the proposed regulations set forth in the Proposed Rules section in this issue of the **Federal Register** . DATES: *Effective Date:* These regulations are effective on July 3, 2008. *Applicability Dates:* For dates of applicability, see §§ 1.367-2T(e)(2), 1.367-4T(c)(3)(i), 1.367-5T(f)(3)(ii), 1.954-2T(i) and 1.956-2T(e). FOR FURTHER INFORMATION CONTACT: Concerning the temporary regulations under section 367, John H. Seibert, at
(202)622-3860; concerning the temporary regulations under section 954 or 956, Paul J. Carlino at
(202)622-3840; concerning submissions of comments, Richard A. Hurst at *Richard.A.Hurst@irscounsel.treas.gov* (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background In General This document contains amendments to 26 CFR Part 1 under sections 367, 954 and 956 of the Code. Section 415(a) of the AJCA, Public Law 108-357 (118 Stat. 1418) repealed sections 954(a)(4) and (f), the foreign base company shipping income provisions of subpart F. Following repeal of the foreign base company shipping income provisions, rents derived from leasing an aircraft or vessel in foreign commerce may be included in subpart F income only if the rents are described in another category of subpart F income, such as foreign personal holding company income (FPHCI) defined in section 954(c). Rents are included in FPHCI under section 954(c)(1)(A). Section 954(c)(2)(A) excludes from FPHCI rents received from unrelated persons and derived in the active conduct of a trade or business. Rents derived by a controlled foreign corporation
(CFC)are considered to be derived in the active conduct of a trade or business if the rents are derived under any one of four circumstances described in the Treasury regulations under section 954(c)(2)(A). One such circumstance, provided in § 1.954-2(c)(1)(iv), is when rents are derived from property leased as a result of the performance of marketing functions by the lessor CFC. These rents are considered to be derived in the active conduct of a trade or business if the lessor CFC, through its own officers or staff of employees located in a foreign country, maintains and operates an organization in the foreign country that is regularly engaged in the business of marketing, or of marketing and servicing, the leased property and that is substantial in relation to the amount of rents derived from leasing the property. Section 1.954-2(c)(2)(ii) provides that the determination of whether the organization in the foreign country is substantial in relation to the amount of rents derived is based on all the facts and circumstances. However, under § 1.954-2(c)(2)(ii), the organization will be considered substantial in relation to the amount of rents if active leasing expenses, as defined in § 1.954-2(c)(2)(iii), equal or exceed 25 percent of the adjusted leasing profit, as defined in § 1.954-2(c)(2)(iv). Section 415(b) of the AJCA amended section 954(c)(2)(A) to create a new marketing safe harbor for the exclusion from FPHCI for rents derived from leasing an aircraft or vessel in foreign commerce. The amendment to section 954(c)(2)(A) provides: [R]ents derived from leasing an aircraft or vessel in foreign commerce shall not fail to be treated as derived in the active conduct of a trade or business if, as determined under regulations prescribed by the Secretary, the active leasing expenses are not less than 10 percent of the profit on the lease. The legislative history of section 415(b) of the AJCA provides that the new safe harbor for rents derived from leasing an aircraft or vessel in foreign commerce “is to be applied in accordance with the existing regulations under section 954(c)(2)(A) by comparing the lessor's ‘active leasing expenses’ for its pool of leased assets to its ‘adjusted leasing profit.’ ” H.R. Conf. Rep. No. 755, 108th Cong., 2d Sess. 389
(2004)(hereinafter 2004 Conference Report). The 2004 Conference Report includes in the definition of the term “aircraft or vessel” engines that are leased separately from an aircraft or vessel. *Id.* at 391. An aircraft or vessel will qualify for the new safe harbor under section 954(c)(2)(A) only if it is leased in “foreign commerce.” The legislative history provides that, for purposes of this safe harbor, An aircraft or vessel will be considered to be leased in foreign commerce if it is used for the transportation of property or passengers between a port (or airport) in the United States and one in a foreign country or between foreign ports (or airports), provided the aircraft or vessel is used predominantly outside the United States. An aircraft or vessel will be considered used predominantly outside the United States if more than 50 percent of the miles during the taxable year are traversed outside the United States or the aircraft or vessel is located outside the United States more than 50 percent of the time during such taxable year. *Id.* at 390. As an alternative to the new safe harbor, the legislative history makes clear that a lessor may qualify for the marketing exception by satisfying a facts and circumstances test. The report of the House of Representatives provides that: The safe harbor will not prevent a lessor from otherwise showing that it actively carries on a trade or business. In this regard, the requirements of section 954(c)(2)(A) will be met if a lessor regularly and directly performs active and substantial marketing, remarketing, management and operational functions with respect to the leasing of an aircraft or vessel (or component engines). H.R. Rep. No. 108-548, Part I, at 210 (2004). The 2004 Conference Report also clarifies that the marketing exception for aircraft and vessels will apply whether the lessor engages in the marketing of the lease as a form of financing (versus marketing the property as such) or whether the lease is classified as a finance lease or operating lease for financial accounting purposes. 2004 Conference Report at 390. The exception will also apply to an existing lease acquired by a lessor, if, following the acquisition, the lessor performs active and substantial management, operational, and remarketing functions with respect to the leased property. *Id.* The 2004 Conference Report makes clear that a taxpayer no longer can claim FSC or ETI benefits for an existing FSC or ETI lease transferred to a CFC lessor. *Id.* The legislative history directs the Secretary of the Treasury to make conforming changes to the current regulations “including guidance that aircraft or vessel leasing activity that satisfies the requirements of section 954(c)(2)(A) shall also satisfy the requirements for avoiding income inclusion under section 956 and section 367(a).” Id. This legislative history indicates that Congress anticipated that taxpayers might restructure their operations with minimal tax cost to take advantage of the new benefits under subpart F provided by section 415 of the AJCA, namely the repeal of the foreign base company shipping income provisions and a liberalized marketing safe harbor for excluding active leasing income from aircraft or vessels engaged in foreign commerce from FPHCI. Notice 2006-48 Notice 2006-48 (2006-1 CB 922), released on May 2, 2006, provided guidance and announced the Treasury Department's and IRS' intention to amend the regulations under sections 367(a), 954, and 956 in accord with section 415 of the AJCA, and the accompanying legislative history. The notice provided that the future regulations would generally be effective beginning on or after May 2, 2006. These temporary regulations incorporate the rules of Notice 2006-48 with minor changes. See § 601.601(d)(2)(ii)(b). Explanation of Provisions The temporary regulations provide guidance with respect to the treatment of certain income and assets related to the leasing of aircraft or vessels in foreign commerce under sections 367, 954, and 956 of the Code in light of section 415 of the AJCA. Section 954 Regulations The temporary regulations add a new marketing safe harbor for purposes of determining whether rents derived from leasing aircraft or vessels (including component parts, such as engines, that are leased separately from an aircraft or vessel) in foreign commerce qualify for the active rents exclusion under section 954(c)(2)(A). This new safe harbor provides that an organization will be considered substantial under § 1.954-2(c)(2)(ii) if active leasing expenses equal or exceed 10 percent of the adjusted leasing profit. The temporary regulations retain the rules in the current regulations regarding how to determine active leasing expenses and adjusted leasing profit and that as an alternative to the safe harbor test, a CFC can satisfy the substantiality test based upon its facts and circumstances. The temporary regulations also amend the current regulations to include a definition of foreign commerce and predominant use of an aircraft or vessel outside the United States in accordance with the definitions given such terms in the legislative history to section 415(b) of the AJCA. The temporary regulations also clarify that rents derived from certain finance leases and acquired leases are eligible for the active rents exclusion. Section 956 Regulations Section 956(c)(1)(A) provides that the term “United States property” generally includes tangible property located in the United States. Section 956(c)(2) provides exceptions to the general definition of U.S. property. Section 956(c)(2)(D) excludes from the term U.S. property any aircraft, railroad rolling stock, vessel, motor vehicle, or container used in the transportation of persons or property in foreign commerce and used predominantly outside the United States. Section 1.956-2(b)(1)(vi) provides that whether an aircraft, railroad rolling stock, vessel, motor vehicle, or container is used predominantly outside the United States depends on the facts and circumstances in each case. The regulations also provide that as a general rule, such transportation property will be considered used predominantly outside the United States if 70 percent or more of the miles traversed in the use of such property are traversed outside the United States or if such property is located outside the United States 70 percent of the time during such taxable year. The temporary regulations amend § 1.956-2(b)(1)(vi) to provide that an aircraft or vessel is excluded from U.S. property if rents derived from leasing such aircraft or vessel are excluded from FPHCI under section 954(c)(2)(A). Section 367 Regulations Section 367 provides that if a U.S. person transfers property to a foreign corporation in an exchange described in sections 332, 351, 354, 356, or 361 of the Code, the foreign corporation will not be considered a corporation for purposes of determining the extent to which gain will be recognized on such transfer. However, section 367(a)(3)(A) generally provides an exception to this rule if the property is used by the foreign corporation in the active conduct of a trade or business outside of the United States. In general, this exception does not apply to property of which the transferor is a lessor at the time of the transfer, unless the transferee is the lessee or the regulations provide otherwise. Section 1.367(a)-2T(a) provides, in part, that section 367(a)(1) does not apply to property transferred to a foreign corporation if the property is transferred for use by that corporation in the active conduct of a trade or business outside of the United States and certain reporting requirements are met. Section 1.367(a)-2T(b)(3) provides that the principles of § 1.954-2(d)(1) are used to determine whether a trade or business that produces rents or royalties is actively conducted, without regard to whether the rents or royalties are received from an unrelated person. Section 1.367(a)-2T(b)(4) provides generally that a foreign corporation conducts a trade or business outside of the United States if the primary managerial and operational activities of the trade or business are located outside of the United States and if immediately after the transfer the transferred assets are located outside of the United States. Section 1.367(a)-4T(c) through
(f)contains rules for determining whether certain types of property are transferred for use in the active conduct of a trade or business outside the United States. Section 1.367(a)-4T(c)(1) provides that if the transferred property will be leased by the transferee foreign corporation, the property generally is considered to be transferred for use in the active conduct of a trade or business outside of the United States only if all three of the following conditions are met:
(i)The transferee's leasing constitutes the active conduct of a leasing business;
(ii)the lessee does not use the property in the United States; and
(iii)the transferee has need for substantial investment in assets of the type transferred. Section 1.367(a)-4T(b)(1) provides that even if property qualifies for the active trade or business exception, when a U.S. person transfers U.S. depreciated property to a foreign corporation, that person must include as ordinary income in the year of the transfer the gain realized that would have been included as ordinary income under section 617(d)(1), 1245(a), 1250(a), 1252(a), or 1254(a) of the Code if the taxpayer had sold the property at its fair market value on the date of the transfer (section 367 recapture). Section 1.367(a)-4T(b)(2)(ii) provides that, for this purpose, U.S. depreciated property includes property that has been used in the United States or has qualified as section 38 property by virtue of section 48(a)(2)(B). Section 1.367(a)-4T(b)(3) provides a methodology to compute the section 367 recapture amount if the property has been used partly outside the United States. In this circumstance, the amount of the section 367 depreciation recapture is determined by multiplying the full section 367 recapture amount by a fraction, the numerator of which is the U.S. use of the property and denominator of which is the total use of the property. For this purpose, U.S. use is the number of months that the property either was used within the United States or qualified as section 38 property by virtue of section 48(a)(2)(B) and was subject to depreciation by the transferor or a related person. Total use is the total number of months that the property was used (or was available for use), and subject to depreciation, by the transferor or a related person. Property is not considered to be used outside the United States during any period in which the property was, for purposes of section 38 or 168, treated as property not used predominantly outside the United States pursuant to the provisions of section 48(a)(2)(B). Section 1.367(a)-5T(f) provides that, regardless of use in an active trade or business, section 367(a)(1) applies to a transfer of tangible property with respect to which the transferor is a lessor at the time of the transfer unless:
(i)The transferee was the lessee and the transferee will not lease to third persons; or
(ii)the transferee will lease to third persons and the transferee satisfies the conditions of § 1.367(a)-4T(c)(1) or (2). The temporary regulations amend the section 367(a) regulations to provide that the principles of section 954(c)(2)(A) and the related regulations shall apply to determine whether a trade or business that produces rents or royalties is actively conducted under § 1.367(a)-2T(b)(3). For purposes of applying § 1.367(a)-2T(b)(4), § 1.367(a)-4T(c)(3) provides that the substantial managerial and operational activities of the trade or business of leasing an aircraft or vessel must be conducted outside of the United States, and the aircraft or vessel must be used predominantly outside of the United States, as defined in section 954 and under the amended regulation. A lessee that uses an aircraft or vessel predominantly outside of the United States will satisfy the requirement in § 1.367(a)-4T(c)(1)(ii). In addition, Notice 2006-48 states that the Treasury Department and IRS were considering future guidance regarding how to determine whether an aircraft or vessel was used predominantly outside the United States for a particular month for purposes of calculating section 367 recapture. The Notice also states that until further guidance is issued, taxpayers are permitted to use any reasonable method to make this determination. The Treasury Department and IRS continue to study this issue and therefore taxpayers may continue to use any reasonable method to make this determination until further guidance is issued. Special Analyses It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For applicability of the Regulatory Flexibility Act (5 U.S.C. Ch. 6) please refer to the cross-reference notice of proposed rule making published elsewhere in this **Federal Register** . Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Drafting Information The principal authors of these regulations are John H. Seibert and Paul J. Carlino, Office of Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805. * * * **Par. 2.** Section 1.367(a)-2T is amended by adding paragraph
(e)to read as follows: § 1.367(a)-2T Exception for transfers of property for use in the active conduct of a trade or business (temporary).
(e)*Special rules for certain transfers occurring on or after May 2, 2006* —(1) *General rule.* Whether a trade or business that produces rents or royalties is actively conducted shall be determined under the principles of section 954(c)(2)(A) and the accompanying regulations (but without regard to whether the rents or royalties are received from an unrelated party). See § 1.954-2(c) and (d).
(2)*Effective/applicability date.* The rules of this paragraph
(e)apply to transfers occurring on or after May 2, 2006. However, if the transferor makes the election to apply the provisions of § 1.367(a)-4T(c)(3)(i) for transfers occurring on or after October 22, 2004, then paragraph (e)(1) will also be applicable for the transfers occurring on or after October 22, 2004.
(3)*Expiration date.* The applicability of this paragraph
(e)will expire on July 1, 2011. **Par. 3.** Section 1.367(a)-4T is amended by adding paragraphs (c)(3) and
(i)to read as follows: § 1.367(a)-4T Special rules applicable to specified transfers of property (temporary).
(c)* * *
(3)*Aircraft and vessels leased in foreign commerce—*
(i)*In general.* For the purposes of satisfying paragraph (c)(1) of this section, aircraft or vessels, including component parts such as engines leased separately from aircraft or vessels, transferred to a foreign corporation and leased to other persons by the foreign corporation shall be considered to be transferred for use in the active conduct of a trade or business if—
(A)The employees of the foreign corporation perform substantial managerial and operational activities of leasing aircraft or vessels outside the United States; and
(B)The leased tangible personal property is predominantly used outside the United States, as determined under § 1.954-2T(c)(2)(v).
(i)*Effective/applicability date.*
(1)The rules of paragraph (c)(3) of this section apply for transfers of property occurring on or after May 2, 2006. Transferors may elect to apply these provisions to transfers occurring on or after October 22, 2004, by citing the provisions of paragraph (c)(3) of this section in the documentation for such transfers required by § 1.6038B-1T(c)(4)(i) and (iv).
(2)*Expiration date.* The applicability of paragraph (c)(3) of this section will expire on July 1, 2011. **Par. 4.** Section § 1.367(a)-5T is amended by adding paragraph (f)(3) to read as follows: § 1.367(a)-5T Property subject to section 367(a)(1) regardless of use in a trade or business (temporary).
(f)* * * (3)(i) With respect to vessels and aircraft, including their component parts, that will be leased by the transferee to third persons, the transferee satisfies the conditions set forth in § 1.367(a)-4T(c).
(ii)*Effective/applicability date.* The rules of this paragraph (f)(3) apply for transfers of property occurring on or after May 2, 2006. If the transferor makes the election to apply the provisions of § 1.367(a)-4T(c)(3) to transfers occurring on or after October 22, 2004, then paragraph (f)(3)(i) of this section will also be applicable for the transfers affected by that election.
(iii)*Expiration date.* The applicability of this paragraph (f)(3) will expire on July 1, 2011. **Par. 5.** Section 1.954-2 is amended as follows: 1. Paragraph (c)(2)(ii) is revised. 2. Paragraphs (c)(2)(v), (c)(2)(vi), (c)(2)(vii) and (c)(3) *Example 6, and (i)* are added. The revision and additions read as follows: § 1.954-2 Foreign personal holding company income.
(c)* * *
(2)* * * (ii)[Reserved]. For further guidance, see § 1.954-2T(c)(2)(ii).
(v)[Reserved]. For further guidance, see § 1.954-2T(c)(2)(v).
(vi)[Reserved]. For further guidance, see § 1.954-2T(c)(2)(vi).
(3)* * * *Example 6.* [Reserved]. For further guidance, see § 1.954-2T(c)(3) *Example 6.*
(i)[Reserved]. For further guidance, see § 1.954-2T(i). **Par. 6.** Section 1.954-2T is added to read as follows: § 1.954-2T Foreign personal holding company income (temporary).
(a)through (c)(2)(i) [Reserved]. For further guidance see, § 1.954-2(a) through (c)(2)(i).
(ii)*Substantiality of foreign organization.* For purposes of paragraph (c)(1)(iv) of this section, whether an organization in a foreign country is substantial in relation to the amount of rents is determined based on all facts and circumstances. However, such an organization will be considered substantial in relation to the amount of rents if active leasing expenses, as defined in paragraph (c)(2)(iii) of this section, equal or exceed 25 percent of the adjusted leasing profit, as defined in paragraph (c)(2)(iv) of this section. In addition, for purposes of *aircraft or vessels* leased in foreign commerce, an organization will be considered substantial if active leasing expenses, as defined in paragraph (c)(2)(iii) of this section, equal or exceed 10 percent of the adjusted leasing profit, as defined in paragraph (c)(2)(iv) of this section. For purposes of paragraphs (c)(1)(iv) and (c)(2) of this section and § 1.956-2T(b)(1)(vi), the term *aircraft or vessels* includes component parts, such as engines that are leased separately from an aircraft or vessel. (c)(2)(iii) through (c)(2)(iv) [Reserved]. For further guidance see, § 1.954-2(c)(2)(iii) through (c)(2)(iv).
(v)*Leased in foreign commerce.* For purposes of paragraph (c)(1)(iv) and (2)(ii) of this section, an aircraft or vessel is considered to be leased in foreign commerce if the aircraft or vessel is used in foreign commerce and is used predominately outside the United States. For purposes of this paragraph (c)(2)(v), an aircraft or vessel is considered to be leased in foreign commerce if used for the transportation of property or passengers between a port (or airport) in the United States and one in a foreign country or between foreign ports (or airports) provided the aircraft or vessel is used predominantly outside the United States. An aircraft or vessel will be considered to be used predominantly outside the United States if more than 50 percent of the miles traversed during the taxable year in the use of such property are traversed outside the United States or if the aircraft or vessel is located outside the United States more than 50 percent of the time during the taxable year.
(vi)*Leases acquired by the CFC lessor.* Except as provided in this paragraph (c)(2)(vi), the exception in paragraph (c)(1)(iv) of this section will also apply to rents from leases acquired from any person, if following the acquisition the lessor performs active and substantial management, operational, and remarketing functions with respect to the leased property. However, if any person is claiming a benefit with respect to an acquired lease pursuant to sections 921 or 114 of the Internal Revenue Code or section 101(d) of the American Jobs Creation Act of 2004, Public Law 108-357 (118 Stat. 1418) (2004), the rents from such lease, notwithstanding § 1.954-2(b)(6), (2)(c) and the remainder of this section, are ineligible for the exception in section 954(c)(2)(A).
(vii)*Finance leases.* Paragraph (c)(1)(iv) of this section can apply to a lessor engaged in the marketing of leases that are treated as finance leases for financial accounting purposes but are treated as leases for Federal income tax purposes.
(3)*Examples 1* through *5* [Reserved]. For further guidance, see § 1.954-2(c)(3) *Examples 1* through *5.* Example 6. The facts are the same as in *Example 2,* except that controlled foreign corporation D purchases aircraft which it leases to others. If Corporation D incurs active leasing expenses, as defined in paragraph (c)(2)(iii) of this section, equal to or in excess of 10 percent of its adjusted leasing profit, as defined in paragraph (c)(2)(iv) of this section, the rental income of Corporation D from its leases with the unrelated foreign corporations is substantial and will be considered as derived in the active conduct of a trade or business for purposes of section 954(c)(2)(A). If a particular aircraft subject to lease was not used by the lessee corporation in foreign commerce, for example, because 50 percent or less of the miles during the taxable year were traversed outside the United States and the aircraft was located in the United States for 50 percent or more of the taxable year, Corporation D is not prevented from otherwise showing that it actively carries on a trade or business with regard to the rents derived from that aircraft, for example, based on its facts and circumstances, or as within the meaning of paragraph (c)(1)(i) or
(iii)of this section.
(d)through
(h)[Reserved]. For further guidance, see § 1.954-2(d) through (h). (i)(1) *Effective/applicability date.* Paragraph
(c)of this section applies to taxable years of controlled foreign corporations beginning on or after May 2, 2006, and for tax years of United States shareholders with or within which such tax years of the controlled foreign corporations ends. Taxpayers may elect to apply paragraph
(c)of this section to taxable years of controlled foreign corporations beginning after December 31, 2004, and for tax years of United States shareholders with or within which such tax years of the controlled foreign corporations end. If an election is made to apply paragraph (b)(1)(vi) of this section to taxable years beginning after December 31, 2004, then the election must also be made for paragraph
(c)of this section.
(2)*Expiration date.* The applicability of § 1.954-2T(c) will expire on July 1, 2011. **Par. 7.** Section 1.956-2 is amended as follows: 1. Paragraph (b)(1)(vi) is revised. 2. Paragraph
(e)is added. The revisions and addition read as follows: § 1.956-2 Definition of United States property.
(b)* * *
(1)* * *
(vi)[Reserved]. For further guidance, see § 1.956-2T(b)(1)(vi).
(e)[Reserved]. For further guidance, see § 1.956-2T(e). **Par. 8.** Section 1.956-2T is amended as follows: 1. Paragraphs (a), (b), (b)(1)(i), (b)(1)(ii), (b)(1)(iii), (b)(1)(iv), (b)(1)(v), (b)(i)(vi), (c),
(d)and (d)(1) are added. 2. Paragraph
(e)is added. The revisions and addition read as follows: § 1.956-2T Definition of United States property (temporary).
(a)through (b)(1)(v) [Reserved]. For further guidance, see § 1.956-2(a) through (b)(1)(v).
(vi)Any aircraft, railroad rolling stock, vessel, motor vehicle, or container used in the transportation of persons or property in foreign commerce and used predominantly outside the United States. Whether transportation property described in this subdivision is used in foreign commerce and predominantly outside the United States is to be determined from all the facts and circumstances of each case. As a general rule, such transportation property will be considered to be used predominantly outside the United States if 70 percent or more of the miles traversed (during the taxable year at the close of which a determination is made under section 956(a)(2)) in the use of such property are traversed outside the United States or if such property is located outside the United States 70 percent of the time during such taxable year. Notwithstanding the above, an aircraft or vessel (as the term is defined in § 1.954-2T(c)(2)(ii)) is excluded from U.S. property if rents derived from leasing such aircraft or vessel are excluded from foreign personal holding company income under section 954(c)(2)(A). See paragraph
(e)of this section for the effective/applicability dates of this paragraph (b)(1)(vi).
(c)through (d)(1) [Reserved]. For further guidance, see § 1.956-2(b)(1)(vii) through (d)(1).
(e)*Effective/applicability date.* Paragraph (b)(1)(vi) of this section applies to taxable years of controlled foreign corporations beginning on or after May 2, 2006, and for tax years of United States shareholders with or within which such tax years of the controlled foreign corporations end. Taxpayers may elect to apply the rule of this section to taxable years of controlled foreign corporations beginning after December 31, 2004, and for tax years of United States shareholders with or within which such tax years of foreign corporations end. If an election is made to apply § 1.954-2T(c) to taxable years of a controlled foreign corporation beginning after December 31, 2004, then the election must also be made for paragraph (b)(1)(vi) of this section.
(2)*Expiration date.* The applicability of paragraph (b)(1)(vi) of this section will expire on July 1, 2011. Approved: June 23, 2008. Linda E. Stiff, Deputy Commissioner for Services and Enforcement. Eric Solomon, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. E8-14919 Filed 7-2-08; 8:45 am] BILLING CODE 4830-01-P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4003 RIN 1212-AB15 Rules for Administrative Review of Agency Decisions AGENCY: Pension Benefit Guaranty Corporation. ACTION: Final rule. SUMMARY: Pension Benefit Guaranty Corporation
(PBGC)is amending its regulation on Administrative Review of Agency Decisions to clarify that the agency's Appeals Board may refer certain categories of appeals to other PBGC departments for a written response and to remove determinations under section 4022A of the Employee Retirement Income Security Act of 1974 (ERISA) from the scope of part 4003. The amendments also include minor clarifying and technical changes to the rules for administrative review of agency decisions. DATES: Effective August 4, 2008. FOR FURTHER INFORMATION CONTACT: Joseph J. Shelton, Attorney, Office of the General Counsel or Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026; 202-326-4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.) SUPPLEMENTARY INFORMATION: On October 18, 2007, PBGC published (at 72 FR 59050) a proposed rule to amend PBGC's regulation on Administrative Review of Agency Decisions (29 CFR part 4003) to clarify that the agency's Appeals Board may refer certain categories of appeals to other PBGC departments for a written response, remove determinations under section 4022A of ERISA from the scope of part 4003, and make minor clarifying and technical changes to the rules for administrative review of agency decisions. PBGC received no public comments on the proposed rule and is finalizing the regulation as proposed. Background Current Rules for Administrative Review of Agency Decisions PBGC administers the pension plan termination insurance program under Title IV of ERISA. Under PBGC's regulation for Administrative Review of Agency Decisions, persons aggrieved by certain PBGC determinations may appeal to the agency's Appeals Board. 29 CFR part 4003. The powers of the Appeals Board are set forth in, among other places, § 4003.58 of the regulations. It states that “the Appeals Board may request the submission of any information or the appearance of any person it considers necessary to resolve a matter before it and to enter any order it considers necessary for or appropriate to the disposition of any matter before it.” 29 CFR 4003.58. The decision of the Appeals Board constitutes final agency action by PBGC with respect to the determination which was the subject of the appeal and is binding on all parties who participated in the appeal. 29 CFR 4003.59(b). The Appeals Board reviews the following categories of determinations: • Determinations that a plan is not covered under section 4021 of ERISA; • Determinations under section 4022(a) or
(c)or section 4022A(a) of ERISA with respect to benefit entitlement of participants and beneficiaries under covered plans and determinations that a domestic relations order is or is not a qualified domestic relations order under section 206(d)(3) of ERISA and section 414(p) of the Internal Revenue Code; • Determinations under section 4022(b) or (c), section 4022A(b) through (e), or section 4022B of ERISA of the amount of benefits payable to participants and beneficiaries under covered plans; • Determinations of the amount of money subject to recapture under section 4045 of ERISA; • Determinations of the amount of liability under section 4062(b)(1), section 4063, or section 4064 of ERISA; and • Determinations that the amount of a participant's or beneficiary's benefit under section 4050(a)(3) of ERISA has been correctly computed based on the designated benefit paid to PBGC under section 4050(b)(2) of ERISA, or that the designated benefit is correct, but only to the extent that the benefit to be paid does not exceed the participant's or beneficiary's guaranteed benefit. 29 CFR 4003.1(b)(5) through (b)(10). Additionally, nothing in part 4003 limits the authority of PBGC to review, either upon request or on its own initiative, a determination to which part 4003 does not apply when, in its discretion, it determines that it would be appropriate to do so. 29 CFR 4003.1(c)(1). A person who is adversely affected by a determination involving any of the matters listed above has not exhausted his or her administrative remedies, and thus may not challenge the determination in court, until he or she has filed an appeal under § 4003.51 and a decision granting or denying the relief requested has been issued by the Appeals Board. 29 CFR 4003.7. An appeal must be filed within 45 days after the date of the determination being appealed, unless the appellant requests an extension of time to file within the 45-day period and the request is granted. 29 CFR 4003.52, 4003.4, 4003.5. An appeal must be in writing, be clearly designated as an appeal, contain a statement of the ground on which it is based and the relief sought, reference all pertinent information already in the possession of PBGC, and include any additional information or data that the appellant believes is relevant. 29 CFR 4003.54. The filing of an appeal generally stays the effectiveness of a determination until a decision on the appeal has been issued by the Appeals Board. 29 CFR 4003.22(a), (b). Appeals Board's Current Practice of Referring Certain Appeals to Other PBGC Departments This final regulation formalizes the Appeals Board's practice of referring certain routine appeals, such as those that allege a mistake of fact or that request a more detailed benefit explanation, to other PBGC departments or Appeals Board staff for a written response. The practice began after the agency concluded that other PBGC departments, such as the Benefits Administration and Payment Department (BAPD), could handle these types of appeals efficiently given their familiarity with the relevant facts underlying the initial benefit determinations. At the same time, the agency concluded that it would be appropriate for Appeals Board staff (rather than the Appeals Board) to respond to untimely and premature appeals, as well as appeals alleging that benefit reductions required by law will work a financial hardship. Appeals Board staff provide support to the Appeals Board in the areas of receipt, review, and closing of appeals and other correspondence. Appeals Board staff also analyze incoming correspondence to determine whether it should be addressed by the Appeals Board as an appeal, referred to another PBGC department, such as BAPD, or retained by Appeals Board staff for response as an inquiry, extension request, or a request for additional information. In 2006, approximately 35% of the appeals received by the Appeals Board involved simple factual disputes, or requested only a more detailed explanation of a benefit determination. These appeals were referred to other PBGC departments for a response and were answered, on average, within 45 days. In situations where PBGC's initial determination is incorrect, BAPD can quickly resolve the matter, without the need for an Appeals Board decision, by issuing a corrected benefit determination. Similarly, if an appellant only requests—in the form of an appeal—a more detailed explanation of his or her initial benefit determination, BAPD can quickly provide a detailed explanation given its familiarity with the initial determination and the relevant participant data. Under current practice, when an appeal is referred to another PBGC department or Appeals Board staff for a written response, the time period for filing a request for Appeals Board review is extended for an additional 30 days from the date of the written response. As discussed more fully below, under the final regulation, the time period for filing a request for Appeals Board review will be extended for an additional 45 days from the date of the PBGC department's or Appeals Board staff's written response. Summary of Amendments Powers of the Appeals Board The regulation amends § 4003.58 of the regulations to clarify that the Appeals Board may refer certain appeals to other PBGC departments or Appeals Board staff for a response. Appeals that will be subject to referral include those that
(1)request an explanation of a covered initial benefit determination,
(2)dispute specific data used in a covered initial determination, such as date of hire, date of retirement, date of termination of employment, length of service, compensation, marital status, and the form of benefit elected; or
(3)request an explanation of the limits on benefits payable by PBGC under part 4022, subpart B, such as the maximum guaranteeable benefit and phase-in. The PBGC department's or Appeals Board staff's response will be in writing and address the matters raised in the appeal. Alternatively, appeals referred to BAPD may be answered in the form of a corrected benefit determination. The written response or corrected benefit determination will provide that the appellant may file a written request for review by the Appeals Board within 45 days of the date of the written response or corrected benefit determination. If a written request for review is not filed with the Appeals Board within 45 days, the Appeals Board will not review the case and the initial determination or corrected benefit determination will become effective under § 4003.22(a). A written response or corrected benefit determination will not be a decision of the Appeals Board within the meaning of § 4003.59 of the regulations. Thus, a person who is issued such a response or corrected benefit determination will not have exhausted his or her administrative remedies under § 4003.7 of the regulations unless and until he or she files a request for review by the Appeals Board and a decision granting or denying the relief requested has been issued. Removal of Determinations Under ERISA Section 4022A Under PBGC's multiemployer program, when a plan becomes insolvent, PBGC provides financial assistance to the plan sufficient to pay guaranteed benefits to participants and administrative expenses. Section 4022A of ERISA sets forth PBGC's guarantee for multiemployer pension plan benefits. A multiemployer plan is considered insolvent if the plan is unable to pay benefits (at least equal to PBGC's guaranteed benefit limit) when due. The plan must repay this financial assistance in accordance with terms and conditions specified by PBGC. Unlike the situation with single-employer plans, however, PBGC does not trustee or otherwise assume responsibility for the liabilities of a financially troubled multiemployer plan. As a result, PBGC does not issue determinations under section 4022A of ERISA with respect to benefit entitlement of participants and beneficiaries. Accordingly, PBGC is amending § 4003.1(b)(6) and
(7)to remove the reference to section 4022A. The effect of this amendment will be to remove determinations under section 4022A from the scope of part 4003. Contents of Appeal Section 4003.54(3) and
(4)of the regulation are amended to reflect the plain language used in the “Your Right to Appeal” brochure that currently accompanies all benefit determinations and is available on PBGC's Web site, *http://www.pbgc.gov* . Section 4003.54(3) states that an appeal shall “[c]ontain a statement of the grounds upon which it is brought and the relief sought.” Addressing the same requirement, the brochure states that an appeal must “[s]pecifically explain why PBGC's determination is wrong and the result you are seeking.” The regulation replaces the language in § 4003.54(3) with language similar to that which is currently used in the brochure. PBGC is also amending § 4003.54(4) of the regulation, which states that an appeal shall “[r]eference all pertinent information already in the possession of the PBGC and include any additional information believed to be relevant.” Addressing the same requirement, the “Your Right to Appeal” brochure states, in part, that an appeal must “[d]escribe the relevant information you believe is known by PBGC and include copies of documents that provide additional information that the Appeals Board should consider.” The final regulation replaces the language in § 4003.54(4) with language similar to that which is currently used in the brochure. Where To File PBGC is amending § 4003.53 of the regulations, which provides information on where to file an appeal, to remove the filing address for appeals and requests for filing extensions because it is no longer accurate. In its place, PBGC is incorporating § 4000.4, which provides general instructions on where to file submissions to PBGC. Replacing the Term “Executive Director” With “Director” in Part 4003 On August 17, 2006, the President signed into law the Pension Protection Act of 2006, Public Law 109-280 (“PPA 2006”). Section 411 of PPA 2006 amended section 4002(a) of ERISA to state that PBGC shall be administered by a Director, who shall be appointed by the President, by and with the advice and consent of the Senate. Thus, PBGC is replacing all references to the term “Executive Director” in part 4003 with the term “Director.” *See* §§ 4003.2 (Definitions), 4003.4 (Extension of time); 4003.33 (Where to submit request for reconsideration), 4003.35 (Final decision on request for reconsideration); and 4003.60 (Referral of appeal to the Executive Director). Applicability The amendments in this final rule are applicable to appeals filed on or after the effective date of the final rule. Compliance With Rulemaking Guidelines PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866. Pursuant to section 1(b)(1) of E.O. 12866 (as amended by Executive Order 13422), PBGC has determined that regulatory action is required in this area. Principally, this regulatory action is necessary to update PBGC's rules for administrative review of agency decisions to accurately reflect the agency's appeals handling procedures. In addition, because PBGC does not issue determinations under section 4022A of ERISA with respect to benefit entitlement of participants and beneficiaries, the final rule removes determinations under section 4022A of ERISA from the scope of part 4003. Finally, the final rule contains minor clarifying and technical changes to the rules for administrative review of agency decisions that will streamline the appeals process and make the rules governing administrative appeals easier to understand. As a rule of agency organization, procedure, or practice, this rule is exempt from notice and public comment and delayed effective date requirements of section 553 of the Administrative Procedure Act. Because no general notice of proposed rulemaking was required, the Regulatory Flexibility Act does not apply to this rule. *See* 5 U.S.C. 601(2), 603, and 604. (Because the PBGC wished to provide an opportunity for public comment, the PBGC published a proposed rule). PBGC has determined that these changes do not modify the information collection requirements under Administrative Appeals (OMB control number 1212-0061, expires 1/31/10). List of Subjects in 29 CFR Part 4003 Administrative practice and procedure, Organization and functions (Government agencies), Pension insurance, Pensions. For the reasons given above, PBGC is amending 29 CFR part 4003 as follows: PART 4003—RULES FOR ADMINISTRATIVE REVIEW OF AGENCY DECISIONS 1. The authority citation for part 4003 continues to read as follows: Authority: 29 U.S.C. 1302(b)(3). § 4003.1 [Amended] 2. In § 4003.1: a. Paragraph (b)(6) is amended by removing the words “or section 4022A(a)”. b. Paragraph (b)(7) is amended by removing the words “(c), section 4022A(b) through (e), or” and adding in their place the words “(c) or”. § 4003.2 [Amended] 3. In § 4003.2: a. The definition of *Appeals Board* is amended by removing the word “Executive”. b. The definition of *Director* is amended by removing the word “Executive” each place it appears in the definition. § 4003.4 [Amended] 4. In § 4003.4, paragraph
(b)introductory text is amended by removing the word “Executive”. § 4003.33 [Amended] 5. Section 4003.33 is amended by removing the word “Executive”. § 4003.35 [Amended] 6. In § 4033.35, paragraph (a)(2) is amended by removing the word “Executive” each place it appears in the paragraph. § 4003.53 [Amended] 7. Section 4003.53 is amended by removing the words “Appeals Board, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 2005-4026” and adding in their place the words “Appeals Board”. 8. In § 4003.54, paragraphs (a)(3) and (a)(4) are revised to read as follows: § 4003.54 Contents of appeal.
(a)* * *
(3)Specifically explain why PBGC's determination is wrong and the result the appellant is seeking;
(4)Describe the relevant information the appellant believes is known by PBGC, and summarize any other information the appellant believes is relevant. It is important to include copies of any documentation that support the appellant's claim or the appellant's assertions about this information; 9. In § 4003.58: a. The existing text of the section is redesignated as paragraph (a). b. A new paragraph
(b)is added to read as follows: § 4003.58 Powers of the Appeals Board.
(b)The Appeals Board may refer certain appeals to another PBGC department or to Appeals Board staff to provide a response to the appellant. The response from another PBGC department or Board staff shall be in writing and address the matters raised in the appeal. The response may be in the form of an explanation or corrected benefit determination. In either case, the appellant will have 45 calendar-days from the date of the response to file a written request for review by the Appeals Board. If a written request for review is not filed with the Appeals Board within the 45-calendar-day period the determination shall become effective pursuant to § 4003.22(a).
(1)Appeals that may be referred to another PBGC department or to the Board staff include those that—
(i)Request an explanation of the initial determination being appealed;
(ii)Dispute specific data used in the determination, such as date of hire, date of retirement, date of termination of employment, length of service, compensation, marital status and form of benefit elected; or
(iii)Request an explanation of the limits on benefits payable by PBGC under Part 4022, Subpart B, such as the maximum guaranteeable benefit and phase-in of the PBGC guarantee.
(2)An explanation or corrected benefit determination issued under this subsection is not considered a decision of the Appeals Board. If an appellant aggrieved by PBGC's initial determination is issued an explanation or corrected benefit determination under this section, the appellant has not exhausted his or her administrative remedies until the appellant has filed a timely request with the Appeals Board for review and the Appeals Board has issued a decision granting or denying the relief requested. See § 4003.7 of this part. 10. In § 4003.60: a. The section heading is amended by removing the word “Executive”. b. The text of the section is amended by removing the word “Executive” each place it appears. Issued in Washington, DC, this 29th day of April, 2008. Elaine L. Chao, Chairman, Board of Directors, Pension Benefit Guaranty Corporation. Issued on the date set forth above pursuant to a resolution of the Board of Directors authorizing its Chairman to issue this final rule. Judith R. Starr, Secretary, Board of Directors, Pension Benefit Guaranty Corporation. [FR Doc. E8-15196 Filed 7-2-08; 8:45 am] BILLING CODE 7709-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0539] RIN 1625-AA00 Security Zone; Thea Foss Waterway, Tacoma, WA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The U.S. Coast Guard is establishing a temporary security zone in the Thea Foss Waterway, Tacoma, Washington during a reception at the Museum of Glass. This security zone is necessary to ensure the safety of dignitaries while attending the reception. Entry into, transit through, mooring, or anchoring within this zone is prohibited unless authorized by the Captain of the Port, Puget Sound or his designated representatives. DATES: This rule is effective from 6 p.m.
(PDT)to 11:59 p.m.
(PDT)on July 3, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0539 and are available for inspection or copying at USCG Sector Seattle, Waterways Management Division between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions concerning this rule, call Ensign Heidi A. Bevis, Waterways Management Division, U.S. Coast Guard Sector Seattle, at 206-217-6147. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of the dignitaries that will be at the Museum of Glass on the date and times this rule will be in effect. If normal notice and comment procedures were followed, this rule would not become effective until after the date of the event. Under 5 U.S.C. 553(d)(3), the U.S. Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Making this rule effective less than 30 days after publication is necessary to ensure the safety of the dignitaries that will be at the Museum of Glass on the date and times this rule will be in effect. Background and Purpose The U.S. Coast Guard is establishing a temporary security zone in the Thea Foss Waterway, Tacoma, Washington to provide for the safety of visiting dignitaries while attending a reception at the Museum of Glass. The reception is one of many events planned in the Puget Sound during the annual ASTA Pacific Tall Ships Challenge and the Tacoma Tall Ships 2008 Event. The U.S. Coast Guard is establishing this zone to ensure that no unauthorized vessels or persons enter into the security zone. The security zone is needed to protect the dignitaries from any waterborne threats. Discussion of Rule This rule will control the movement of all vessels and persons in a security zone that includes all waters within a line connecting the following points 47°14.80 N, 122°26.00 W; 47°14.80 N, 122°25.97 W; 47°14.60 N, 122°25.92 W; and 47°14.6 N, 122°25.95 W. The security zone does not extend on land. The U.S. Coast Guard through this action intends to promote the security of personnel while attending the reception at the Museum of Glass, which is located on the waterfront of the Thea Foss Waterway, Tacoma, WA. Entry into this zone by all vessels or persons will be prohibited unless authorized by the Captain of the Port. This security zone will be enforced by U.S. Coast Guard personnel. The Captain of the Port may be assisted by other federal, state, or local agencies as needed. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This rule will be in effect for less than 6 hours and vessel traffic can pass safely around the security zone. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The U.S. Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for less than 6 hours and vessel traffic can pass safely around the security zone. Before the effective period, we will issue maritime advisories widely available throughout the Puget Sound. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule because it concerns an emergency situation of less than 1 week in duration. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165, as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapters 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1 2. From 6 p.m.
(PDT)to 11:59 p.m.
(PDT)on July 3, 2008, a temporary § 165.T13-041 is added to read as follows: § 165.T13-041 Security Zone: Thea Foss Waterway, Tacoma, Washington.
(a)*Location.* The following area is a security zone: All waters within a line connecting the following points 47°14.80 N, 122°26.00 W; 47°14.80 N, 122°25.97 W; 47°14.60 N, 122°25.92 W; and 47°14.6 N, 122°25.95 W.
(b)*Regulations.* In accordance with the general regulations in 33 CFR Part 165, Subpart C, no vessel may enter, transit, moor, or anchor within the security zone described in paragraph
(a)of this section, except for vessels authorized by the Captain of the Port or his designated representatives.
(c)*Enforcement period.* This rule is effective from 6 p.m.
(PDT)to 11:59 p.m.
(PDT)on July 3, 2008. If the need for the security zone ends before the scheduled termination time, the Captain of the Port will cease enforcement of this section and will announce that fact via Broadcast Notice to Mariners. Dated: June 20, 2008. Stephen P. Metruck, Captain, U.S. Coast Guard, Captain of the Port, Puget Sound. [FR Doc. E8-15207 Filed 7-2-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2008-0337; FRL-8565-2] Revisions to the California State Implementation Plan, South Coast Air Quality Management District AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to approve revisions to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO <sup>X</sup> ) and oxides of sulfur (SO <sup>X</sup> ) emissions from facilities emitting 4 tons or more per year of NO <sup>X</sup> or SO <sup>X</sup> in the year 1990 or any subsequent year under the SCAQMD's Regional Clean Air Incentives Market (RECLAIM) program. We are approving local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). DATES: This rule is effective on September 2, 2008 without further notice, unless EPA receives adverse comments by August 4, 2008. If we receive such comments, we will publish a timely withdrawal in the **Federal Register** to notify the public that this direct final rule will not take effect. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2008-0337, by one of the following methods: 1. *Federal eRulemaking Portal: www.regulations.gov* . Follow the on-line instructions. 2. *E-mail: steckel.andrew@epa.gov* . 3. *Mail or deliver:* Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *www.regulations.gov* or e-mail. *www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* The index to the docket for this action is available electronically at *www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location ( *e.g.* , copyrighted material), and some may not be publicly available in either location ( *e.g.* , CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Lily Wong, EPA Region IX,
(415)947-4114, *wong.lily@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us” and “our” refer to EPA. Table of Contents I. The State's Submittal A. What rules did the State submit? B. Are there other versions of these rules? C. What is the purpose of the submitted rule revisions? II. EPA's Evaluation and Action A. How is EPA evaluating the rules? B. Do the rules meet the evaluation criteria? C. Public Comment and Final Action III. Statutory and Executive Order Reviews I. The State's Submittal A. What rules did the State submit? Table 1 lists the rules we are approving with the dates that they were adopted by the SCAQMD and submitted by the California Air Resources Board (CARB). Table 1.—Submitted Rules Local agency Rule No. Rule title Adopted Submitted SCAQMD 2004 Requirements 04/06/07 03/07/08 SCAQMD 2007 Trading Requirements 04/06/07 03/07/08 SCAQMD 2010 Administrative Remedies and Sanctions 04/06/07 03/07/08 On April 17, 2008, this rule submittal was found to meet the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review. B. Are there other versions of these rules? Table 2 lists the previous versions of these rules approved into the SIP. Table 2.—Current SIP Approved Version of Rules Rule No. Rule title Adopted Submitted Approved FR citation 2004 Requirements 05/11/01 05/31/01 09/04/03, 68 FR 52512 2007 Trading Requirements 05/06/05 10/20/05 08/29/06, 71 FR 51120 2010 Administrative Remedies and Sanctions 01/07/05 07/15/05 08/29/06, 71 FR 51120 C. What is the purpose of the submitted rule revisions? NO <sup>X</sup> helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control NO <sup>X</sup> emissions. The RECLAIM program was initially adopted by SCAQMD in October 1993. The program established for many of the largest NO <sup>X</sup> and SO <sup>X</sup> facilities in the South Coast Air Basin a regional NO <sup>X</sup> and SO <sup>X</sup> emissions cap and trade program, with the emissions caps declining over time. The program was designed to provide incentives for sources to reduce emissions and advance pollution control technologies by giving sources added flexibility in meeting emission reduction requirements. A RECLAIM source's emissions may not exceed its holding of RECLAIM Trading Credits
(RTCs)in any compliance year. A RECLAIM source may comply with this requirement by installing control equipment, modifying their activities, or purchasing RTCs from other facilities. The primary purposes of the amendments to the RECLAIM rules were to provide some relief on reporting and to improve clarity and enforceability of the rules. The amendments to Rule 2004 relieve sources from submitting quarterly certification reports when there are zero emissions. The amendments to Rule 2007 clarify the reporting requirements for certain contractual agreements called forward contracts and address enforceability of the program to parties who participate in trading but do not live in California. The amendments to Rule 2010 clarify that if a facility has excess emissions violations and changes operators, the old and new operators are both liable for past violations. The amendments include a mechanism to assign liability. EPA's technical support document
(TSD)has more information about these rules. II. EPA's Evaluation and Action A. How is EPA evaluating the rules? Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology
(RACT)for each category of sources covered by a Control Techniques Guidelines
(CTG)document as well as each major source in nonattainment areas (see sections 182(a)(2) and 182(f)), and must not relax existing requirements (see sections 110(l) and 193). The SCAQMD regulates an ozone nonattainment area (see 40 CFR part 81), so Regulation XX (Rules 2000 through 2020) must fulfill RACT. Guidance and policy documents that we use to help evaluate enforceability and RACT requirements consistently include the following: 1. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO <sup>X</sup> Supplement), 57 FR 55620, November 25, 1992. 2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook). 3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook). 4. “Improving Air Quality with Economic Incentive Programs,” EPA-452/R01-001 (the EIP guidance), January 2001. B. Do the rules meet the evaluation criteria? We believe these rules are consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, and economic incentive programs. The TSD has more information on our evaluation. C. Public Comment and Final Action As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this **Federal Register** , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by August 4, 2008, we will publish a timely withdrawal in the **Federal Register** to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on September 2, 2008. This will incorporate these rules into the federally enforceable SIP. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. III. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action: • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 2, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements. Dated: April 22, 2008. Laura Yoshii, Acting Regional Administrator, Region IX. Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart F—California 2. Section 52.220 is amended by adding paragraph (c)(354) to read as follows: § 52.220 Identification of plan.
(c)* * *
(354)New and amended regulations for the following APCDs were submitted on March 7, 2008, by the Governor's designee.
(i)Incorporation by reference.
(A)South Coast Air Quality Management District. ( *1* ) Rule 2004, “Requirements” adopted on October 15, 1993 and amended on April 6, 2007. ( *2* ) Rule 2007, “Trading Requirements” adopted on October 15, 1993 and amended April 6, 2007. ( *3* ) Rule 2010, “Administrative Remedies and Sanctions” adopted on October 15, 1993 and amended on April 6, 2007. [FR Doc. E8-14884 Filed 7-2-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R09-OAR-2007-0561; FRL-8555-1] Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Nevada; Wintertime Oxygenated Gasoline Rule; Vehicle Inspection and Maintenance Program; Redesignation of Truckee Meadows to Attainment for the Carbon Monoxide Standard AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving certain submittals by the State of Nevada of revisions to the Nevada state implementation plan that are intended to provide for attainment and maintenance of the carbon monoxide national ambient air quality standard in the Truckee Meadows nonattainment area located within Washoe County, Nevada. These revisions include a local wintertime oxygenated gasoline rule, a “basic” vehicle inspection and maintenance program (including a performance standard evaluation), current statutory provisions and State rules governing mobile sources, a maintenance plan and related motor vehicle emissions budgets. EPA is also approving Nevada's request to redesignate the Truckee Meadows carbon monoxide nonattainment area to attainment. EPA is deferring action on the proposal to rescind a provision previously approved in the plan and related to inspection and maintenance of vehicles operated on Federal installations. EPA is taking these actions pursuant to those provisions of the Clean Air Act that obligate the Agency to take action on submittals of revisions to state implementation plans and requests for redesignation. This action makes certain State and local measures and commitments related to attainment and maintenance of the carbon monoxide standard in Truckee Meadows federally enforceable as part of the Nevada state implementation plan. DATES: *Effective Date:* This rule is effective on August 4, 2008. ADDRESSES: EPA has established docket number EPA-R09-OAR-2007-0561 for this action. The index to the docket is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Eleanor Kaplan, EPA Region IX,
(415)947-4147, *kaplan.eleanor@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, the terms “we,” “us,” and “our” refer to EPA. This supplementary information is organized as follows: Table of Contents I. Proposed Action II. Public Comments III. EPA Action IV. Statutory and Executive Order Reviews I. Proposed Action On January 7, 2008 (73 FR 1175), under section 110(k)(3) of the Clean Air Act, as amended in 1990 (CAA or “Act”), EPA proposed to approve certain submittals of revisions to the Nevada state implementation plan
(SIP)by the Nevada Division of Environmental Protection (NDEP). These revisions are intended to provide for attainment and maintenance of the carbon monoxide
(CO)national ambient air quality standards (NAAQS) in the Truckee Meadows nonattainment area located within Washoe County, Nevada. The specific SIP revision submittals that we proposed to approve are listed in the following table: Plan, plan element or rule Adoption date(s) State of Nevada submittal date(s) Washoe County District Board of Health Regulations Governing Air Quality Management, section 040.095 (“Oxygen content of motor vehicle fuel”) Originally adopted on Dec. 21, 1988 and amended on Apr. 18, 1990; amended on Sept. 23, 1992; amended on Sept. 22, 2005 Submitted on Apr. 14, 1991; re-submitted as amended on Nov. 13, 1992; re-submitted as amended on Nov. 4, 2005. State Implementation Plan for a Basic Program for the Inspection and Maintenance of Motor Vehicles for the Truckee Meadows Planning Area, Nevada (June 1994) Regulations adopted at various times by the State Environmental Commission and Department of Motor Vehicles but superseded by SIP revision submittal dated May 11, 2007, as listed below June 3, 1994. Basic I/M Performance Standard Evaluation Sept. 28, 2006 Nov. 2, 2006. Nevada Mobile Source SIP, Update of the Regulatory Element (May 11, 2007) Regulations adopted at various times by State Environmental Commission and Department of Motor Vehicles May 11, 2007. Redesignation Request and Maintenance Plan for the Truckee Meadows Carbon Monoxide Non-Attainment Area (September 2005) Sept. 22, 2005 Nov. 4, 2005. Specifically, we proposed to approve NDEP's SIP revision submittal dated November 4, 2005 of the wintertime oxygenated gasoline rule as amended on September 22, 2005 by the Washoe County District Board of Health (“District”) and codified as District Regulations Governing Air Quality Management section 040.095 (“District rule 040.095”). In our proposed rule, we found that District rule 040.095 fulfills the requirements of section 211(m) of the Act and applicable EPA regulations. We also proposed to approve the SIP revision submittal dated June 3, 1994 of the *State Implementation Plan for a Basic Program for the Inspection and Maintenance of Motor Vehicles for the Truckee Meadows Planning Area, Nevada* (June 1994) (“Basic I/M SIP”). In connection with the basic vehicle inspection and maintenance (I/M) program in Truckee Meadows, we proposed to approve two subsequent SIP revision submittals: a “basic” I/M performance standard evaluation (“Basic I/M Performance Standard Evaluation”) submitted on November 2, 2006 and the *Nevada Mobile Source SIP, Update of the Regulatory Element* (May 11, 2007) (“Mobile Source SIP Update”) submitted on May 11, 2007. Among other items, NDEP's Mobile Source SIP Update contains current I/M-related statutory provisions, regulations, and updated exhaust gas analyzer specifications. 1 Based on our review of the various elements of the program, we proposed to approve the basic I/M program for Truckee Meadows as meeting the requirements of CAA section 187(a)(4) and our implementing regulations, including the “basic” performance standard that applies to “moderate” CO nonattainment areas with design values less than 12.7 ppm (such as Truckee Meadows). 1 The statutory provisions and rules submitted by NDEP on May 11, 2007 represent a comprehensive update to the regulatory portion of the State's mobile source SIP (excluding the rules establishing fuels specifications, alternative fuels programs for government vehicles, and local rules related to mobile sources), including the regulatory portion of the State's Truckee Meadows I/M SIP, which was last approved in 1984 (49 FR 44208, November 5, 1984), and the regulatory portion of the State's Las Vegas Valley I/M SIP, which was last approved in 2004 (69 FR 56351, September 21, 2004). The current submitted versions of the I/M-related statutory provisions and rules are not significantly different than the corresponding versions of the statutory provisions and rules approved in 2004 for the State's Las Vegas I/M program, and are consistent with the underlying assumptions used to develop the Las Vegas Valley 2005 CO Plan, which was approved by EPA on August 7, 2006 (71 FR 44587). In connection with our proposed approval of the State's Basic I/M SIP, as supplemented and amended in submittals dated November 2, 2006 and May 11, 2007, we proposed no action on submitted rule Nevada Administrative Code
(NAC)subsection 445B.595(2) (“NAC 445B.595(2)”), which relates to State I/M requirements for motor vehicles operated on Federal installations located within I/M areas, because of sovereign immunity concerns. Furthermore, we proposed, under CAA section 110(k)(6), to rescind our previous approval of NAC 445B.595(2) into the Nevada SIP in 2004 because we believed that we had approved it in error, also on the grounds of sovereign immunity. For the reasons given below in response to NDEP's comments on our proposal, we are separating our actions on NAC 445B.595(2) (i.e., both the proposed “no action” on the submitted rule (and current codification of) NAC 445B.595(2) and the proposed correction) from the rest of the actions proposed on January 7, 2008 and intend to re-propose action on NAC 445B.595(2) in a future **Federal Register** document. In our January 7, 2008 proposed rule, we proposed to approve NDEP's SIP revision submittal (dated November 4, 2005) of the *Redesignation Request and Maintenance Plan for the Truckee Meadows Carbon Monoxide Non-Attainment Area* (September 2005) (“Truckee Meadows CO Maintenance Plan”), adopted by the District on September 22, 2005. In connection with our proposed approval of the Truckee Meadows CO Maintenance Plan, we proposed to approve certain commitments by the District, contingency provisions, and CO motor vehicle emissions budgets for years 2010 and 2016 for the purposes of transportation conformity. In so doing, we found that the Truckee Meadows CO Maintenance Plan meets the requirements for maintenance plans under section 175A of the Act. Lastly, based on our evaluation of the various SIP requirements and submittals discussed above, we concluded that, upon our final approval of the SIP submittals evaluated in the proposed rule, the State will have met all section 110 and part D requirements that apply to the Truckee Meadows moderate CO nonattainment area and thereby satisfied the criteria for redesignation under CAA section 107(d)(3)(E) and proposed to approve the State's request (dated November 4, 2005) for redesignation of Truckee Meadows to attainment accordingly. 2 2 The Truckee Meadows CO Maintenance Plan relies upon three principal State or local control measures: The District's wintertime oxygenated gasoline rule, the State's vehicle inspection and maintenance (I/M) program, and the District's residential wood combustion rule. We proposed to approve the first and second of the three measures in our January 7, 2008 proposed rule. We approved the third measure (the residential wood combustion rule) in a separate document in 2007. See 72 FR 33397 (June 18, 2007). In our proposed rule, we indicated that we would not finalize the redesignation until we take final action approving the oxygenated gasoline rule and the I/M program. In today's action, we are finalizing approvals of both the oxygenated gasoline rule and the I/M program, thereby fulfilling a prerequisite to the final redesignation action which we are also taking today. Also, for reasons set forth in the proposed rule, we find that we need not fully approve either the County's nonattainment new source review rules or the County's transportation conformity rules as a pre-condition to redesignation of Truckee Meadows to attainment for the CO NAAQS. Please see the proposed rule for additional information on the various SIP revision submittals and the redesignation request and on our corresponding evaluation and rationale for proposed action. II. Public Comments EPA's January 7, 2008 proposed rule provided a 30-day public comment period. Comments were received from the Air Quality Management Division
(AQMD)of the Washoe County District Health Department, the Nevada Division of Environmental Protection (NDEP), and the Western States Petroleum Association (WSPA). Responses to the comments from each entity are provided below. *Comment #1:* By letter dated January 23, 2008, AQMD notes that, since adoption of the maintenance plan, EPA has reorganized the rules in 40 CFR part 58 and relocated the requirements for annual assessments of monitoring networks from 40 CFR 58.20(d) to 58.10, and that the maintenance plan refers in two places to the former rather than the latter. *Response #1:* AQMD is correct. EPA has relocated the requirements for annual assessments of monitoring networks from 40 CFR 58.20 to 58.10. We encourage AQMD to include the updated regulatory reference in any subsequent maintenance plan for the area. *Comment #2:* By letter dated January 30, 2008, NDEP requests a 30-day extension of the comment period to assess the implications of EPA's proposed rescission, under CAA section 110(k)(6) error correction authority, of a previously approved provision related to inspection and maintenance (I/M) of vehicles operated on Federal installations (i.e., NAC 445B.595(2)). By letter dated January 31, 2008, NDEP withdraws its request for an extension of the public comment period with respect to all aspects of EPA's January 7, 2008 proposal except for the proposed rescission action (related to I/M for vehicles operated on Federal installations) and requests instead that EPA act separately on the rescission aspect of the proposal. By e-mail dated February 1, 2008 and then by letter dated February 4, 2008, NDEP restates its amended request from January 31, 2008 but specifically conditions withdrawal of the extension request upon EPA's removal of the proposed CAA section 110(k)(6) action to rescind NAC 445B.595(2) from the rest of the January 7, 2008 proposed action. *Response #2:* NDEP's initial letter dated January 30, 2008 led to EPA's reconsideration of the basis for EPA's proposed rescission of NAC 445B.595(2) and related “no action” proposal for the 2007 codification of the subject rule. On the basis of that reconsideration, EPA intends to re-propose action on NAC 445B.595(2) in a separate **Federal Register** document but to otherwise finalize the January 7, 2008 action as proposed. *Comment #3:* By letter submitted on February 6, 2008, WSPA supports the redesignation of the Truckee Meadows nonattainment area as an attainment area for CO, but objects to the inclusion of the Washoe County wintertime oxygenated gasoline requirement in the Truckee Meadows CO maintenance plan. WSPA cites the results of a 2005 study commissioned by WSPA (and submitted with the comment letter), and more recent study results, as support for the proposition that elimination of the oxygenated fuel requirements in Washoe County would have little impact on ambient CO concentrations in 2006 and beyond and would not threaten compliance with the CO NAAQS particularly given the low ambient CO concentrations measured in Washoe County in recent years and declining trend in CO emissions. WSPA concludes that the oxygenated gasoline program has outlived its usefulness. In WSPA's view, continuation of the Washoe County wintertime oxygenated gasoline requirement places an unnecessary logistical burden on gasoline suppliers, which could lead to adverse supply impacts and possible market volatility. WSPA draws further support from the experiences in other areas in the country that have rescinded their oxygenated gasoline programs without triggering any CO NAAQS violations. Lastly, WSPA requests that EPA remove the Washoe County wintertime oxygenated gasoline requirement as a control measure in the Truckee Meadows CO maintenance plan for the years 2006 through 2016 but registers no objection to the requirement being included in the maintenance plan as a contingency measure. *Response #3:* The Clean Air Act assigns to the states initial and primary responsibility for formulating a plan to achieve the NAAQS. It is up to the state to prepare state implementation plans which contain specific pollution control measures. EPA's responsibilities under the CAA are qualitatively different from those of the state agency. The EPA is charged with reviewing and approving or disapproving the enforceable implementation plans prepared by states and other political subdivisions identified in the statute. It is not EPA's role to disapprove the State choice of control strategies if that strategy will result in attainment or continued maintenance of the NAAQS, and meets all other applicable statutory requirements. See *Union Electric Co.* v. *EPA,* 427 U.S. 246 (1976); *Train* v. *NRDC,* 421 U.S. 60 (1975). EPA's role in reviewing SIP submissions is to approve state choices, provided that they meet the criteria of the Clean Air Act. Federal inquiry into the reasonableness of state action is not allowed under the Act (see *Union Electric Co.* v. *EPA,* 427 U.S. 246, 255-266 (1976); CAA section 110(a)(2)). Under section 116 of the CAA, with certain exceptions not relevant here, a State retains the right to adopt and enforce any requirement respecting control or abatement of air pollution, including more stringent emissions standards and limitations. For the reasons set forth in the proposed rule (see 73 FR 1175, at 1178-1179), we find that the District's wintertime gasoline oxygen content requirements (i.e., District Rule 040.095) meet applicable CAA criteria, including public notice and hearing prior to adoption and submittal, as well as the substantive criteria of section 211(m) and meet applicable EPA regulations. WSPA does not object to our finding that the District's requirements meet applicable CAA criteria and applicable EPA regulations, but rather WSPA contends that the rule is no longer needed for maintenance of the CO NAAQS in Truckee Meadows. However, for the reasons set forth above, we do not have the authority to disapprove the District's choice (endorsed by the applicable State agency, NDEP) to include the wintertime oxygenated gasoline requirement as part of their CO maintenance strategy on such grounds. If NDEP and the District choose to revise the SIP to suspend implementation of the wintertime oxygenated gasoline requirement and to adopt the requirement as a contingency measure, they may do so with a demonstration that the area would continue to maintain the CO NAAQS without the benefit of the related emissions reductions, subject to compliance with CAA procedural requirements and subject to EPA approval. III. EPA Action As authorized under section 110(k) of the Act, and for the reasons summarized in section I of this document and, in greater detail, in our proposed rule, EPA is approving certain submittals by NDEP of revisions to the Nevada SIP that are required to provide for attainment of the CO NAAQS in the Truckee Meadows “moderate” CO nonattainment area and is approving a maintenance plan under section 175A of the Act. EPA is also approving, under section 107(d)(3) of the Act, NDEP's request to redesignate Truckee Meadows to attainment for the CO NAAQS. Our specific approvals are as follows: First, we are approving the local oxygenated gasoline regulation, District Rule 040.095, as amended on September 22, 2005) as fulfilling the requirements of section 211(m) of the CAA. Second, we are approving the State of Nevada's SIP revisions containing the “basic” vehicle I/M program for Truckee Meadows because we find that the program meets all applicable requirements under CAA section 187(a)(4) and EPA regulations. Specifically, we are approving three I/M-related SIP revisions submitted by NDEP:
(i)*State Implementation Plan for a Basic Program for the Inspection and Maintenance of Motor Vehicles for the Truckee Meadows Planning Area, Nevada* (June 1994), submitted on June 3, 1994, excluding the following outdated or superseded elements included in the June 3, 1994 SIP revision: The statutory provisions and rules, the exhaust gas analyzer specifications, MOBILE5.0a emissions modeling, and a contingency measure adopted by the Washoe County District Board of Health;
(ii)Basic I/M Performance Standard Evaluation for motor vehicles in the Truckee Meadows planning area, submitted on November 2, 2006; and
(iii)Current Nevada mobile source statutory and regulatory provisions and rules, including those related to I/M, and updated exhaust gas analyzer (NV2000) specifications, submitted by NDEP on May 11, 2007. 3 The current Nevada mobile source statutory provisions and regulations, including those related to I/M, that we are approving are as follows: 3 Our approval of the May 11, 2007 SIP revision submittal updates and supersedes the statutory and regulatory portion of Nevada's mobile source SIP (excluding the rules establishing fuels specifications, alternative fuels programs for government vehicles, and any local rules related to mobile sources) and updates the exhaust gas analyzer specifications as approved in 2004 for the State's I/M program in Las Vegas and Boulder City. Superseded provisions include the State's Truckee Meadows I/M SIP, which was last approved in 1984 (49 FR 44208, November 5, 1984), and the regulatory portion of the State's Las Vegas Valley I/M SIP, which was last approved in 2004 (69 FR 56351, September 21, 2004), with the exception of NAC 445B.595(2) which is being retained in the Nevada SIP at this time. • Nevada Revised Statutes (2005), chapter 365: section 365.060; chapter 366, section 366.060; chapter 445B, sections 445B.210, 445B.700-845 (excluding NRS 445B.776, 445B.777, and 445B.778); chapter 481, sections 481.019-481.087; chapter 482, sections 482.029, 482.155-482.290, 482.385, 482.461, and 482.565; and chapter 484, sections 484.101, 484.644 and 484.6441; • Nevada Administrative Code, chapter 445B (January 2007 revision by the Legislative Counsel Bureau), sections 445B.400 to 445B.735, excluding subsection
(2)of section 445B.595. Third, we are approving the *Redesignation Request and Maintenance Plan for the Truckee Meadows Carbon Monoxide Non-Attainment Area* (September 2005) (“Truckee Meadows CO Maintenance Plan”), adopted by the Washoe County District Board of Health on September 22, 2005, and submitted by NDEP to EPA on November 4, 2005, as meeting the requirements of CAA section 175A. In connection with our approval of the Truckee Meadows CO Maintenance Plan, we find the following plan elements to be acceptable: • Baseline
(2002)emissions inventory and future year (2010 and 2016) inventory projections; • Commitment to continue operating an appropriate ambient CO monitoring network; • Commitment to verify continued attainment through ambient monitoring and the preparation and submittal of periodic inventory updates and surveys of residential woodburning; • Contingency provisions that establish a two-tier approach with specific triggering events and regulatory responses: The first involving a lowering of the stage 1 (alert) episode level (tier 1) by the next CO season and the second involving a recommendation and timetable for action by the Washoe County District Board of Health or the State Environmental Commission to tighten certain requirements, potentially including a higher wintertime gasoline oxygen content or higher waiver amounts in the State's vehicle I/M program, to promptly correct any violation of the CO NAAQS after redesignation; • Commitment to prepare and submit a subsequent CO maintenance plan for the Truckee Meadows area 8 years after redesignation; and • CO motor vehicle emissions budgets (in terms of pounds per typical CO season day) of 330,678 pounds per typical CO season day in year 2010 and 321,319 pounds per typical CO season day in year 2016. Fourth, under section 107(d)(3), we are approving NDEP's request (dated November 4, 2005) to redesignate the Truckee Meadows CO nonattainment area to attainment. In so doing, we find that: • The Truckee Meadows nonattainment area has attained the CO NAAQS; • EPA has fully approved the applicable SIP for this area under section 110(k) of the CAA; • The improvement in ambient CO conditions in Truckee Meadows is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; • The State has met all requirements applicable to Truckee Meadows under section 110 and part D (of title I) of the CAA; 4 and 4 With respect to this criterion, we find that we need not fully approve either the District's nonattainment new source review rules or conformity rules as a pre-condition to redesignation of Truckee Meadows to attainment for the CO NAAQS. • As described above, we are approving the Truckee Meadows CO Maintenance Plan as meeting the requirements of CAA section 175A. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affects small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves state law implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. section 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 2, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: April 2, 2008. Jane Diamond, Acting Regional Administrator, Region IX. Chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart DD—Nevada 2. Section 52.1470 is amended by adding paragraphs (c)(68), (c)(69), (c)(70) and (c)(71) to read as follows: § 52.1470 Identification of plan.
(c)* * *
(68)The following plan revision was submitted on June 3, 1994 by the Governor's designee.
(i)Incorporation by reference.
(A)Nevada Division of Environmental Protection. ( *1* ) State Implementation Plan for a Basic Program for the Inspection and Maintenance of Motor Vehicles for the Truckee Meadows Planning Area, Nevada (June 1994), including the cover page through page 9.
(ii)Additional material.
(A)Nevada Division of Environmental Protection. ( *1* ) State Implementation Plan for a Basic Program for the Inspection and Maintenance of Motor Vehicles for the Truckee Meadows Planning Area, Nevada (June 1994), appendix 1, appendix 2 (only the certificate of compliance and Nevada attorney general's opinion), and appendices 3, 6, 8, and 10.
(69)The following plan revision was submitted on November 4, 2005 by the Governor's designee.
(i)Incorporation by reference.
(A)Washoe County District Health Department. ( *1* ) Rule 040.095, “Oxygen content of motor vehicle fuel,” revised on September 22, 2005. ( *i* ) Washoe County District Board of Health Meeting, September 22, 2005, Public Hearing—Amendments—Washoe County District Board of Health Regulations Governing Air Quality Management; to Wit: Rule 040.095 (Oxygen Content of Motor Vehicle Fuel). ( *2* ) Redesignation Request and Maintenance Plan for the Truckee Meadows Carbon Monoxide Non-Attainment Area (September 2005), excluding appendices B, C, and D.
(70)The following plan revision was submitted on November 2, 2006 by the Governor's designee.
(i)Incorporation by reference.
(A)Washoe County District Health Department. ( *1* ) Basic I/M Performance Standard, excluding appendices A through D. ( *i* ) Washoe County District Board of Health Meeting, September 28, 2006, Public Hearing—State Implementation Plan (SIP)—“Basic Program—Inspection and Maintenance (I/M) of Motor Vehicles—Truckee Meadows Planning Area, Nevada;” to Wit: Basic Inspection and Maintenance (I/M) Performance Standard.
(ii)Additional material.
(A)Washoe County District Health Department. ( *1* ) Basic I/M Performance Standard, appendices A through D.
(71)The following plan revision was submitted on May 11, 2007 by the Governor's designee.
(i)Incorporation by reference.
(A)Nevada Division of Environmental Protection. ( *1* ) New or amended statutes related to mobile sources, including Nevada's vehicle inspection and maintenance program in Las Vegas Valley/Boulder City and Truckee Meadows: Nevada Revised Statutes (2005), chapter 365, section 365.060, “Motor vehicle fuel defined;” chapter 366, section 366.060, “Special fuel defined;” chapter 445B, sections 445B.210, “Powers of Commission,” 445B.700, “Definitions,” 445B.705, “Approved inspector defined,” 445B.710, “Authorized inspection station defined,” 445B.715, “Authorized maintenance station defined,” 445B.720, “Authorized station defined,” 445B.725, “Commission defined,” 445B.730, “Evidence of compliance defined,” 445B.735, “Fleet station defined,” 445B.737, “Heavy-duty motor vehicle defined,” 445B.740, “Light-duty motor vehicle defined,” 445B.745, “Motor vehicle defined,” 445B.747, “Motor vehicle fuel defined,” 445B.750, “Passenger car defined,” 445B.755, “Pollution control device defined,” 445B.757, “Special fuel defined,” 445B.758, “Used motor vehicle defined,” 445B.759, “Inapplicability to military tactical vehicles,” 445B.760, “Authority of Commission to prescribe standards for emissions from mobile internal combustion engines; trimobiles; standards pertaining to motor vehicles to be approved by Department of Motor Vehicles,” 445B.765, “Information concerning program for control of emissions from motor vehicles: Collection, interpretation and correlation; public inspection,” 445B.770, “Regulations of Commission: Control of emissions from motor vehicles; program for inspection and testing of motor vehicles,” 445B.775, “Regulations of Commission: Requirements for licensing of stations by Department of Motor Vehicles,” 445B.780, “Program for regulation of emissions from heavy-duty motor vehicles; equipment used to measure emissions; waiver from requirements of program,” 445B.785, “Regulations of Department of Motor Vehicles: Licensing of stations; performance of inspection and issuance of evidence of compliance; diagnostic equipment; fee, bond or insurance; informational pamphlet; distribution,” 445B.790, “Regulations concerning inspection of stations; grounds for denial, suspension or revocation of license of inspector or station,” 445B.795, “Compulsory program for control of emissions: Limitations,” 445B.798, “Authority of Department of Motor Vehicles, in larger counties, to conduct test of emissions from motor vehicle being operated on highway,” 445B.800, “Evidence of compliance: Requirements for registration, sale or long-term lease of used vehicles in certain counties,” 445B.805, “Evidence of compliance: Exemptions from requirements,” 445B.810, “State Department of Conservation and Natural Resources to provide assistance,” 445B.815, “Evidence of compliance: Duty of employees and agents of Department of Motor Vehicles; submission by owner or lessee of fleet,” 445B.820, “Installation and inspection of pollution control device,” 445B.825, “Exemption of certain classes of motor vehicles; waiver from provisions of NRS 445B.770 to 445B.815, inclusive,” 445B.830, “Fees to be paid to Department of Motor Vehicles; Pollution Control Account; expenditure of money in Account; quarterly distributions to local governments; annual reports by local governments; grants; creation and duties of advisory committee; submission and approval of proposed grants,” 445B.832, “Surcharge for electronic transmission of information: Authority to impose; inclusion as separate entry on form certifying emission control compliance; definition,” 445B.834, “Additional fee for form certifying emission control compliance: Retention of portion of fee by station performing inspection; definition,” 445B.835, “Administrative fine; hearing; additional remedies to compel compliance,” 445B.840, “Unlawful acts,” and 445B.845, “Criminal penalty; enforcement of provisions by peace officer; mitigation of offense;” chapter 481, sections 481.019, “Creation; powers and duties,” 481.023, “Administration of laws by Department; exceptions,” 481.027, “General functions of Department of Motor Vehicles and Department of Transportation respecting state highways,” 481.031, “Office of Director of Department created,” 481.035, “Director of Department: Appointment; classification; other employment prohibited; employment of deputies and staff,” 481.047, “Appointment of personnel,” 481.0473, “Divisions of Department,” 481.0475, “Duties of Administrative Services Division,” 481.048, “Division of Compliance Enforcement: Appointment and duties of investigators,” 481.0481, “Section for Control of Emissions From Vehicles and Enforcement of Matters Related to Use of Special Fuel: Creation; appointment and duties of investigators, officers and technicians,” 481.051, “Powers and duties of Director: Generally,” 481.0515, “Powers and duties of Director: References to names of persons in documents and records,” 481.052, “Powers and duties of Director: Adoption of definition of ‘seasonal resident’ by regulation,” 481.0535, “Powers and duties of Director: Expenditure of appropriations to assist certain entities to purchase and obtain evidence; receipt and safekeeping of money,” 481.055, “Department to keep main office in Carson City; maintenance of branch offices,” 481.057, “Offices of Department: Extended hours of operation,” 481.063, “Collection and deposit of fees for publications of Department and private use of files and records of Department; limitations on release and use of files and records; regulations,” 481.065, “Acceptance of donations for programs for traffic safety,” 481.079, “Money collected to be deposited in Motor Vehicle Fund; exception; dishonored payments; adjustment of deposits,” 481.081, “Arrearage in tax, fee or assessment administered by Department: Department authorized to file certificate; certificate as lien; extension of lien,” 481.082, “Arrearage in tax, fee or assessment administered by Department: Release or subordination of lien; certificate issued by Department as conclusive evidence,” 481.083, “Money for administration of chapter; claims,” and 481.087, “Administrative expenses deemed cost of administration of operation of motor vehicles on public highways;” chapter 482, sections 482.029, “Electric personal assistive mobility device defined,” 482.155, “Enforcement of provisions of chapter by Department, its officers and peace officers,” 482.160, “Administrative regulations; branch offices; appointment of agents and designation of county assessor as agent; compensation of certain agents,” 482.162, “Department to adopt regulations setting forth criteria for determination of whether person is farmer or rancher; presentation of evidence to Department,” 482.165, “Director to provide forms,” 482.170, “Records of Department concerning registration and licensing,” 482.171, “List of registered owners to be provided for selection of jury; reimbursement of Department,” 482.173, “Schedule for retention and disposition of certain records of Department,” 482.175, “Validity of registration: Powers and duties of Department and registered dealers,” 482.180, “Motor Vehicle Fund: Creation: deposits; interest and income; dishonored payments; distribution of money collected for basic governmental services tax; transfers,” 482.1805, “Revolving Account for Issuance of Special License Plates: Creation; deposit of certain fees; use of money in Account; transfer of excess balance to State Highway Fund,” 482.181, “Governmental services taxes: Certification of amount collected each month; distribution,” 482.183, “Motor Vehicle Revolving Account: Creation; use; deposits,” 482.186, “Certain odometers deemed to register mileage reflected on odometer plus 100,000 miles,” 482.187, “Department authorized to enter into written agreements for periodic payment of delinquent taxes or fees; regulations,” 482.188, “Waiver of penalty or interest for failure timely to file return or pay tax, penalty or fee in certain circumstances,” 482.205, “Registration required for certain vehicles,” 482.206, “Periods of registration for motor vehicles; exceptions,” 482.208, “Registration of leased vehicles by long-term lessor or long-term lessee,” 482.210, “Exemptions from registration,” 482.215, “Application for registration,” 482.216, “Department may authorize new vehicle dealer to accept applications for registration and transfer of registration of new motor vehicles and to issue certificates of registration; duties of dealer; prohibited acts; regulations,” 482.220, “Application for specially constructed, reconstructed, rebuilt or foreign vehicle; certificate of inspection; charge for inspection,” 482.225, “Collection of sales or use tax upon application for registration of certain vehicles purchased outside this State; payment of all applicable taxes and fees required for registration; refund of tax erroneously or illegally collected,” 482.230, “Grounds requiring refusal of registration,” 482.235, “Registration indexes and records; assignment of registration number by registered dealer,” 482.240, “Issuance of certificates of registration and title by Department or registered dealer; period of validity of certificate,” 482.245, “Contents of certificates of registration and title,” 482.255, “Placement of certificate of registration; surrender upon demand of peace officer, justice of the peace or deputy of Department; limitation on conviction,” 482.260, “Duties of Department of Motor Vehicles and its agents relative to registration of vehicle; issuance of certificate of title; fees and taxes,” 482.265, “License plates issued upon registration; stickers, tabs or other devices issued upon renewal of registration; return of plates; fee for and limitations on issuance of special license plates,” 482.266, “Manufacture of license plates substantially similar to license plates issued before January 1, 1982: Written request; fee; delivery; duties of Department; retention of old plates authorized if requested plates contain same letters and numbers,” 482.267, “License plates: Production at facility of Department of Corrections,” 482.268, “License plates: Additional fee for issuance; deposit of fee,” 482.270, “License plates: General specifications; redesign; configuration of special license plates designed, prepared and issued pursuant to process of direct application and petition,” 482.2703, “License plates: Samples; form; fee; penalty,” 482.2705, “License plates: Passenger cars and trucks,” 482.271, “License plates: Decals; fees,” 482.2715, “License plates: Registrant entitled to maintain code if continuously renewed; exceptions; issuance of replacement plates with same code after expiration of registration; fee,” 482.2717, “License plates to be issued to automobile wreckers and operators of salvage pools,” 482.272, “License plates: Motorcycles,” 482.274, “License plates: Trailers,” 482.275, “License plates: Display,” 482.280, “Expiration and renewal of registration,” 482.2805, “Department not to renew registration if local authority has filed notice of nonpayment pursuant to NRS 484.444; fee for service performed by Department,” 482.2807, “Requirements for registration if local government has filed notice of nonpayment pursuant to NRS 484.444,” 482.281, “Authority of Department of Motor Vehicles to allow authorized inspection station or authorized station to renew certificates of registration; adoption of regulations,” 482.283, “Change of name or place of residence: Notice to Department required; timing and contents of notice,” 482.285, “Certificates, decals and number plates: Illegibility, loss, mutilation or theft; obtaining of duplicates or substitutes; fees and taxes,” 482.290, “Assignment and recording of new number for identification of vehicle if old number destroyed or obliterated; fee; penalty for willful defacement, alteration, substitution or removal of number with intent to defraud,” 482.385, “Registration of vehicle of nonresident owner not required; exceptions; registration of vehicle by person upon becoming resident of this State; penalty; taxes and fees; surrender or nonresident license plates and registration certificate; citation for violation,” 482.461 “Failure of mandatory test of emissions from engines; notification; cost of inspection,” 482.565, “Administrative fines for violations other than deceptive trade practices; injunction or other appropriate remedy; enforcement proceedings;” and chapter 484, sections 484.101, “Passenger car defined,” 484.644, “Device for control of pollution: Use required; disconnection or alteration prohibited; exceptions,” and 484.6441, “Device for control of pollution: Penalty; proof of conformity may be required.” ( *2* ) New or amended rules related to mobile sources, including Nevada's vehicle inspection and maintenance program in Las Vegas Valley/Boulder City and Truckee Meadows: Nevada Administrative Code, chapter 445B (January 2007 revision by the Legislative Counsel Bureau), sections 445B.400, “Scope,” 445B.401, “Definitions,” 445B.403, “Approved inspector defined,” 445B.4045, “Authorized inspection station defined,” 445B.405, “Authorized station defined,” 445B.408, “Carbon monoxide defined,” 445B.409, “Certificate of compliance defined,” 445B.4092, “Certified on-board diagnostic system defined,” 445B.4096, “Class 1 approved inspector defined,” 445B.097, “Class 1 fleet station defined,” 445B.098, “Class 2 approved inspector defined,” 445B.4099, “Class 2 fleet station defined,” 445B.410, “CO <sup>2</sup> defined,” 445B.411, “Commission defined,” 445B.413, “Department defined,” 445B.415, “Director defined,” 445B.416, “Emission defined,” 445B.418, “EPA defined,” 445B.419, “Established place of business defined,” 445B.420, “Evidence of compliance defined,” 445B.421, “Exhaust emissions defined,” 445B.422, “Exhaust gas analyzer defined,” 445B.424, “Fleet station defined,” 445B.4247, “Gross vehicle weight rating defined,” 445B.426, “Heavy-duty motor vehicle defined,” 445B.427, “Hydrocarbon defined,” 445B.428, “Hz defined,” 445B.432, “Light-duty motor vehicle defined,” 445B.433, “Mini motor home defined,” 445B.434, “Motor home defined,” 445B.435, “Motor vehicle defined,” 445B.440, “New motor vehicle defined,” 445B.442, “Opacity defined,” 445B.443, “Person defined,” 445B.444, “ppm defined,” 445B.449, “Smoke defined,” 445B.450, “Special mobile equipment defined,” 445B.451, “Standard defined,” 445B.4515, “State electronic data transmission system defined,” 445B.452, “Tampering defined,” 445B.4525, “Test station defined,” 445B.453, “Truck defined,” 445B.454, “Used motor vehicle defined,” 445B.455, “Van conversion defined,” 445B.4553, “Vehicle inspection report defined,” 445B.4556, “Vehicle inspection report number defined,” 445B.456, “Severability,” 445B.460, “Test station: License required to operate; expiration of license; ratings; performance of certain services; prohibited acts; location,” 445B.461, “Compliance by Federal Government, state agencies and political subdivisions,” 445B.462, “Test station: Application for license to operate; inspection of premises; issuance of license,” 445B.463, “Test station: Grounds for denial, revocation or suspension of license; reapplication; permanent revocation of license,” 445B.464, “Test station: Hearing concerning denial, suspension or revocation of license,” 445B.465, “Authorized station or authorized inspection station: Requirements for bond or deposit,” 445B.466, “Authorized station or authorized inspection station: Liability under bond or deposit; suspension and reinstatement of licenses,” 445B.467, “Authorized station or authorized inspection station: Disbursement, release or refund of bond or deposit,” 445B.468, “Authorized stations and authorized inspection stations: Scope of coverage of bond or deposit,” 445B.469, “Authorized station or authorized inspection station: Posting of signs and placards,” 445B.470, “Test station: Display of licenses; availability of reference information,” 445B.471, “Test station: Advertising; provision by Department of certain informational material for public,” 445B.472, “Test station: Records of inspections and repairs; inspection of place of business; audit of exhaust gas analyzers,” 445B.473, “Test station: Notice of wrongfully distributed or received vehicle inspection reports; inventory of vehicle inspection reports,” 445B.474, “Test station: Failure to employ approved inspector,” 445B.475, “Authorized station or class 2 fleet station: Requirements for employees,” 445B.476, “Test station: Willful failure to comply with directive; suspension of license; reapplication after revocation of license,” 445B.478, “Fleet station: Licensing; powers and duties,” 445B.480, “Test station: Requirements concerning business hours,” 445B.485, “Prerequisites to licensing,” 445B.486, “Examination of applicants for licensing,” 445B.487, “Denial of license,” 445B.489, “Grounds for denial, suspension or revocation of license,” 445B.490, “Hearing on suspension or revocation of license,” 445B.491, “Temporary suspension or refusal to renew license,” 445B.492, “Duration of suspension; surrender of license,” 445B.493, “Limitation on reapplication after revocation or denial or license; surrender of revoked license; permanent revocation of license,” 445B.495, “Contents of license,” 445B.496, “Expiration of license,” 445B.497, “Requirements for renewal of license,” 445B.498, “Performance of emission inspection without license prohibited; expiration of license; license ratings,” 445B.4983, “Issuance of access code to approved inspector; use of access code and identification number,” 445B.4985, “Violations,” 445B.499, “Fees,” 445B.501, “Report of change in place of employment or termination of employment,” 445B.502, “Submission of certificate of employment to report change,” 445B.5049, “Connection to state electronic data transmission system,” 445B.505, “Availability of list of approved analyzers and their specifications,” 445B.5052, “Approved analyzer: Use and equipment; deactivation by Department,” 445B.5055, “Revocation of approval of analyzer,” 445B.5065, “Manufacturer of approved analyzer: Required warranty,” 445B.5075, “Manufacturer of approved analyzer: Required services; administrative fine for violations,” 445B.575, “Device to control pollution: General requirement; alteration or modification,” 445B.576, “Vehicles powered by gasoline or diesel fuel: Restrictions on visible emissions and on idling of diesel engines,” 445B.577, “Devices used on stationary rails: Restrictions on visible emissions,” 445B.578, “Exceptions to restrictions on visible emissions,” 445B.579, “Inspection of vehicle: Devices for emission control required,” 445B.580, “Inspection of vehicle: Procedure for certain vehicles with model year of 1995 or older and heavy-duty vehicles with model year of 1996 or newer,” 445B.5805, “Inspection of vehicle: Procedure for light-duty vehicles with model year of 1996 or newer,” 445B.581, “Inspection of vehicle: Place and equipment for performance,” 445B.5815, “Inspection of vehicle: Certified on-board diagnostic systems,” 445B.582, “Repair of vehicle; reinspection or testing,” 445B.583, “Evidence of compliance: Purpose; records,” 445B.584, “Evidence of compliance: Purchase of vehicle inspection report numbers,” 445B.585, “Evidence of compliance: Issuance by approved inspector,” 445B.586, “Evidence of compliance: Return of fee,” 445B.587, “Test of light-duty motor vehicles powered by diesel engines: Equipment for measurement of smoke opacity,” 445B.588, “Testing of light-duty motor vehicles powered by diesel engines: List of approved equipment,” 445B.589, “Testing of light-duty motor vehicles powered by diesel engines: Procedure; certificate of compliance; effect of failure; lack of proper fuel cap,” 445B.5895, “Dissemination of list of authorized stations,” 445B.590, “Waiver of standards for emissions,” 445B.591, “Form for registration of vehicle in area where inspection of vehicle not required,” 445B.5915, “Requirements for registration of vehicle temporarily being used and maintained in another state,” 445B.592, “Applicability of certain standards for emissions and other requirements,” 445B.593, “Evidence of compliance required for certain vehicles based in Clark County,” 445B.594, “Evidence of compliance required for certain vehicles based in Washoe County,” 445B.595 (excluding subsection(2)), “Inspections of vehicles owned by State or political subdivisions or operated on federal installations,” 445B.596, “Standards for emissions,” 445B.598, “Imposition and statement of fee for inspection and testing; listing of stations and fees,” 445B.599, “Prescription and notice of maximum fees for inspections and testing,” 445B.600, “Procedure for setting new fee,” 445B.601, “Concealment of emissions prohibited,” 445B.6115, “Exemption of vehicle from certain provisions,” 445B.6125, “Certification of vehicle for exemption,” 445B.7015, “Annual and additional inspections,” 445B.7025, “Alteration of emission control system of vehicle used to conduct inspection,” 445B.7035, “Preliminary written notice of violation; reinspection of vehicle,” 445B.7045, “Administrative fines and other penalties for certain violations,” 445B.727, “Administrative fines and other penalties,” and 445B.735, “Program for licensure to install, repair and adjust devices for control of emissions.”
(ii)Additional material.
(A)Nevada Division of Environmental Protection. ( *1* ) Correspondence dated March 6, 2007 from the Nevada Department of Motor Vehicles to the Nevada Division of Environmental Protection describing an upgrade to the NV2000 emission analyzer to make emissions testing possible on motor vehicles containing a certified on-board diagnostic system which uses controller area network communication. PART 81—[AMENDED] 3. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart C—[Amended] 4. In § 81.329, the table entitled “Nevada—Carbon Monoxide” is amended by revising the entry for the Reno area to read as follows: § 81.329 Nevada. Nevada—Carbon Monoxide Designated area Designation Date 1 Type Classification Date 1 Type * * * * * * * Reno Area: Washoe County
(part)Truckee Meadows Hydrographic Area 87 August 4, 2008 Attainment * * * * * * * 1 This date is November 15, 1990, unless otherwise noted. [FR Doc. E8-15015 Filed 7-2-08; 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 Jackson County, Alabama, and Incorporated Areas Docket No.: FEMA-B-7744 Bengis Creek Tributary 1,180 feet upstream from County Route 85 +614 City of Stevenson. 1,195 feet upstream from County Route 85 +614 Crow Creek 240 feet upstream from John T Reid Parkway +607 City of Stevenson. 790 feet upstream from County Route 53 +610 Dry Creek 2,300 feet upstream from Snodgrass Road +608 Unincorporated Areas of Jackson County, City of Scottsboro. 25 feet downstream from Southern Railway +622 Guntersville Lake 8,810 feet upstream from Goosepond Drive +598 4,900 feet downstream from Goosepond Drive +598 Little Paint Creek 80 feet downstream from County Route 108 +589 Unincorporated Areas of Jackson County, City of Bridgeport. 50 feet upstream from County Route 108 +591 Tennessee River 1,300 feet downstream from Railroad +612 6,020 feet downstream from Railroad +612 Town Creek 4,310 feet upstream from County Route 33 +605 Unincorporated Areas of Jackson County. 4,320 feet upstream from County Route 33 +605 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Bridgeport Maps are available for inspection at 116 Jim Thomas Avenue, Bridgeport, AL 35740. City of Scottsboro Maps are available for inspection at 916 S. Broad Street, Scottsboro, AL 35768. City of Stevenson Maps are available for inspection at 104 Kentucky Avenue, Stevenson, AL 35772. Unincorporated Areas of Jackson County Maps are available for inspection at 102 E. Laurel Street, Suite 47, Scottsboro, AL 35768. Camden County, Georgia, and Incorporated Areas Docket No.: FEMA-B-7755 St. Marys River At the Charlton/Nassau/Camden County Boundary +8 Unincorporated Areas of Camden County. Approximately 460 feet downstream of the Charlton/Nassau/Camden County Boundary +8 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Camden County Maps are available for inspection at Camden County Planning and Building Department, 107 Gross Road, Suite 3, Kingsland, GA 31548. Cobb County, Georgia, and Incorporated Areas Docket No.: FEMA-B-7753 Allatoona Branch Approximately 700 feet upstream of confluence of Allatoona Creek +985 Unincorporated Areas of Cobb County. Approximately 75 feet upstream of Holland Rd +1019 Allatoona Creek Approximately 625 feet upstream of County Line Rd +862 Unincorporated Areas of Cobb County. Approximately 1,625 feet upstream of Holland Rd +1070 Bishop Creek Just upstream of confluence with Sope Creek +911 Unincorporated Areas of Cobb County. Just upstream of Seven Springs Circle +979 Blackjack Creek Just upstream of confluence with Sope Creek +999 Unincorporated Areas of Cobb County, City of Marietta. Just upstream of Lightfoot Circle +1065 Butler Creek Approximately 1,375 feet upstream of Nance Rd +862 Unincorporated Areas of Cobb County, City of Acworth, City of Kennesaw. Approximately 600 feet downstream of Sumit Wood Drive +1024 Campgound Creek Just upstream of confluence with Sope Creek +931 Unincorporated Areas of Cobb County. Approximately 800 feet upstream of Roswell Road +1057 Concord Creek Approximately 50 feet upstream of Covered Bridge Road +897 Unincorporated Areas of Cobb County. Approximately 650 feet downstream of Durrell Street +1014 Cooper Lake Creek Approximately 550 feet downstream of East West Connector +825 Unincorporated Areas of Cobb County, City of Smyrna. Approximately 100 feet upstream of Gann Road +892 Due West Creek Approximately 300 feet downstream of Hadaway Road +896 Unincorporated Areas of Cobb County. Approximately 1,100 feet downstream of Butterfield Road +988 Eastside Creek Just upstream of Confluence with Sope Creek +920 Unincorporated Areas of Cobb County. Just downstream of Greenview Drive +965 Elizabeth Branch Just upstream of the confluence with Sope Creek +1000 Unincorporated Areas of Cobb County, City of Marietta. Approximately 1,750 feet upstream of Interstate 75 +1082 Favor Creek Approximately 1,025 feet upstream of confluence of Nickajack Creek +917 Unincorporated Areas of Cobb County. Approximately 1,225 feet downstream of Favor Road +987 Hope Creek Just upstream of confluence with Rottenwood Creek +940 Unincorporated Areas of Cobb County, City of Marietta. Approximately 1,100 feet upstream of Interstate 75 +1004 Laurel Creek Approximately 375 feet upstream of Norfolk Southern Corporation railroad +807 Unincorporated Areas of Cobb County, City of Smyrna. Approximately 150 feet downstream of Dunn Street +986 Liberty Hill Branch Approximately 400 feet upstream of Monarch Valley Walk +770 Unincorporated Areas of Cobb County. Approximately 950 feet upstream of Blackhawk Trail +914 Little Allatoona Creek Approximately 1,875 feet upstream of Old Stilesboro Road +896 Unincorporated Areas of Cobb County. Approximately 925 feet upstream of Fernstone Road +932 Little Noonday Creek Approximately 1,925 feet upstream of confluence of Noonday Creek +906 Unincorporated Areas of Cobb County. Approximately 1,325 feet upstream of Almon Drive +1007 Lost Mountain Creek At Confluence with Wildhorse Creek +907 City of Powder Springs. Approximately 1,850 feet upstream of the confluence with Wildhorse Creek +907 Luther Ward Creek Approximately 1,525 feet upstream of confluence of Mud Creek +920 Unincorporated Areas of Cobb County. Approximately 1,700 feet upstream of Luther Ward Road +963 Milam Branch Approximately 700 feet upstream of confluence of Queen Creek +914 Unincorporated Areas of Cobb County. Approximately 50 feet downstream of Lone Oak Drive +1010 Mill Creek No. 1 Approximately 250 feet upstream of the confluence of Powder Springs Creek +942 Unincorporated Areas of Cobb County. Just downstream of Poplar Springs Road +1001 Mill Creek No. 2 Approximately 2,000 feet upstream of confluence of Nickajack Creek +908 Unincorporated Areas of Cobb County. Approximately 100 feet upstream of Hicks Road +965 Morgan Lake Tributary Just upstream of Rio Montana Drive +947 Unincorporated Areas of Cobb County. Approximately 300 feet downstream of Morgan Lake Dam +986 Mud Creek Approximately 1,600 feet upstream of confluence of Nose Creek +912 Unincorporated Areas of Cobb County. Approximately 250 feet downstream of Gordon Combs Road +1024 Nickajack Creek Approximately 2,550 feet downstream of Veterans Memorial Highway +767 Unincorporated Areas of Cobb County, City of Smyrna. Approximately 200 feet upstream of Cobb Drive +1047 Noonday Creek Approximately 175 feet upstream of Shallowford Road +904 Unincorporated Areas of Cobb County, City of Kennesaw, City of Marietta. Approximately 325 feet upstream of New Salem Road +1025 Noonday Tributary No. 3 Approximately 1,125 feet upstream of confluence of Noonday Creek +928 Unincorporated Areas of Cobb County, City of Marietta. Approximately 350 feet downstream Dickson Road +1051 Noonday Tributary No. 7 Approximately 425 feet upstream of confluence of Noonday Creek +953 Unincorporated Areas of Cobb County. Approximately 1,500 feet downstream of Club Drive +995 Noses Creek Approximately 300 feet upstream of Clay Road +892 Unincorporated Areas of Cobb County, City of Austell, City of Marietta, City of Powder Springs. Approximately 225 feet downstream of Tower Road +1082 Olley Creek Approximately 2,525 feet upstream of confluence of Sweetwater Creek +892 Unincorporated Areas of Cobb County, City of Austell, City of Marietta. Approximately 50 feet downstream of Hill Street +1069 Olley Creek Tributary Approximately 350 feet downstream of Booth Road +1001 Unincorporated Areas of Cobb County, City of Marietta. Approximately 600 feet upstream of Brownstone Road +1026 Piney Grove Creek Just upstream of the Confluence with Sewell Mill Creek +951 Unincorporated Areas of Cobb County. Just downsteam of Davis Road +1067 Pitner Creek Approximately 800 feet upstream of confluence of Little Allatoona Creek +890 Unincorporated Areas of Cobb County. Approximately 425 feet upstream of Fords Road +997 Poorhouse Creek Just upstream of the confluence with Rottenwood Creek +928 Unincorporated Areas of Cobb County, City of Marietta. Approximately 4,800 feet upstream of Cobb Parkway +954 Poplar Creek Just upstream of confluence with Rottenwood Creek +880 Unincorporated Areas of Cobb County, City of Smyrna. Just upstream of PineCrest Circle +1011 Powder Springs Creek Approximately 2,100 feet upstream of C H James Parkway +914 Unincorporated Areas of Cobb County. Approximately 800 feet upstream of Macland Road +941 Powers Creek Just upstream of confluence with Rottenwood Creek +933 Unincorporated Areas of Cobb County. Approximately 200 feet upstream of Powers Ferry Road +951 Proctor Creek Approximately 1,950 feet upstream of Old Highway 41 +865 Unincorporated Areas of Cobb County, City of Acworth, City of Kennesaw. Just upstream of Jiles Road +948 Queen Creek Approximately 175 feet downstream of Queens River Drive +767 Unincorporated Areas of Cobb County. Approximately 225 feet upstream of Mableton Drive +997 Robertson Creek Just upstream of the Confluence with Sewell Mill Creek +923 Unincorporated Areas of Cobb County. Approximately 600 feet upstream of Benson Drive +1019 Rottenwood Creek Approximately 500 feet upstream of the confluence with the Chattahoochee River +789 Unincorporated Areas of Cobb County, City of Marietta. Just upstream of Fairground Street +1052 Rubes Creek Approximately 2,800 feet upstream of confluence of Trickum Creek +896 Unincorporated Areas of Cobb County. Approximately 130 feet upstream of Saxony Glen +1075 Rubes Creek Tributary Just upstream of Confluence with Rubes Creek +918 Unincorporated Areas of Cobb County. Approximately 750 feet upstream of Keheley Road +986 Sewell Mill Creek Just Upsteam of Greenfield Drive +921 Unincorporated Areas of Cobb County, City of Smyrna. Just upstream of Karen Lane +1084 Smyrna Branch Approximately 450 feet downstream of Cobb Drive +933 Approximately 175 feet upstream of Powder Springs Street +997 Sope Branch Just upstream of Confluence with Sope Creek +1023 City of Marietta. Approximately 300 feet upstream of Sequoia Road +1088 Sope Creek Just upstream of confluence with the Chattahoochee River +808 Unincorporated Areas of Cobb County, City of Marietta. Approximately 1,025 feet upstream of Fairground Street +1042 Tanyard Creek Approximately 1,275 feet upstream of Lake Acworth Drive +864 Unincorporated Areas of Cobb County, City of Acworth. Approximately 300 feet downstream of Baker Plantation Drive +919 Theater Branch Approximately 125 feet upstream of Old Concord Road +929 Unincorporated Areas of Cobb County, City of Smyrna. Just downstream of Parkway Drive +973 Thompson Creek Just upstream of the Confluence with Sewell Mill Creek +934 Unincorporated Areas of Cobb County. Just upstream of Pine Road +965 Trickum Creek Just upstream of Confluence with Rubes Creek +911 Unincorporated Areas of Cobb County. Approximately 400 feet upstream of Pete Shaw Road +1054 Trickum Creek Tributary Just upstream of confluence with Trickum Creek +935 Unincorporated Areas of Cobb County. Just downstream of Jims Road +1108 Ward Creek Approximately 600 feet upstream of Ernest Barrett Parkway +926 Unincorporated Areas of Cobb County, City of Marietta. Approximately 50 feet downstream of Northcutt Street +1050 Westside Branch At confluence with Ward Creek +1016 City of Marietta. Approximately 500 feet upstream of the confluence with Ward Creek +1016 Wildhorse Creek At Confluence with Noses Creek +907 Unincorporated Areas of Cobb County, City of Powder Springs. Just downstream of Macedonia Road +907 Wildwood Branch Just upstream of the confluence with Sope Creek +985 Unincorporated Areas of Cobb County, City of Marietta. Approximately 300 feet downstream of Varner Road +1027 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Acworth Maps are available for inspection at City Hall, 4415 Senator Russell Avenue, Acworth, GA 30101. City of Austell Maps are available for inspection at 2716 Broad Street, SW, Austell, GA 30106. City of Kennesaw Maps are available for inspection at 2529 J.O. Stephenson Avenue, Kennesaw, GA 30144. City of Marietta Maps are available for inspection at Development and Inspection Department, 205 Lawrence Street, Marietta, GA 30060. City of Powder Springs Maps are available for inspection at City Hall, 4484 Marietta Street, Powder Springs, GA 30127. City of Smyrna Maps are available for inspection at City Hall, 2800 King Street, Smyrna, GA 30080. Unincorporated Areas of Cobb County Maps are available for inspection at 100 Cherokee Street, Marietta, GA 30090. Labette County, Kansas, and Incorporated Areas Docket No.: FEMA-D-7826 Bachelor Creek Approximately 0.81 mile upstream of confluence with Labette Creek +855 Unincorporated Areas of Labette County. Approximately 1.4 miles upstream of Ness Road +888 Labette Creek Approximately 0.74 mile downstream of Southern Avenue +864 City of Parsons, Unincorporated Areas of Labette County. Approximately 2.2 miles upstream of MKT Railroad +892 Labette Creek Approximately 0.38 mile downstream of confluence with Bachelor Creek +855 Unincorporated Areas of Labette County. Approximately 3.03 miles upstream of confluence with Bachelor Creek +858 Labette Creek Tributary A Approximately 0.95 mile downstream of Rooks Road +856 Unincorporated Areas of Labette County. Approximately 0.44 mile upstream of Rooks Road +866 Labette Creek Tributary B Approximately 0.75 mile upstream of confluence with Labette Creek +859 Unincorporated Areas of Labette County. Approximately 1.07 miles upstream of Queens Road +888 Little Labette Creek Approximately 0.27 mile downstream of MKT Railroad +865 City of Parsons, Unincorporated Areas of Labette County. Approximately 0.45 mile upstream of U.S. Highway 160 +907 Little Labette Creek Tributary A Approximately 0.19 mile upstream of confluence with Little Labette Creek +885 Unincorporated Areas of Labette County. Approximately 1.30 miles upstream of Meade Road +903 Little Labette Creek Tributary B Approximately 500 feet upstream of confluence with Little Labette Creek +897 Unincorporated Areas of Labette County. Approximately 0.23 mile upstream of U.S. Highway 160 +903 Tolen Creek Approximately 0.38 mile upstream of confluence with Labette Creek +880 City of Parsons, Unincorporated Areas of Labette County. Approximately 0.32 mile upstream of Pratt Road +891 Tolen Creek Tributary A Approximately 0.11 mile upstream of confluence of Tolen Creek +883 City of Parsons, Unincorporated Areas of Labette County. Appromimately 1.46 miles upstream of U.S. Highway 160 +901 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Parsons Maps are available for inspection at 112 South 17th Street, Parsons, KS 67357. Unincorporated Areas of Labette County Maps are available for inspection at 501 Merchant Street, Oswego, KS 67356. Jefferson County, Tennessee, and Incorporated Areas Docket No.: FEMA-B-7751 Douglas Lake Approximately 5,100 feet upstream of confluence of Leadvale Creek +1002 Unincorporated Areas of Jefferson County, City of Baneberry, Town of Dandridge. At Sevier/Jefferson county boundary +1002 Mossy Creek Approximately 2,200 feet downstream of Russell Avenue +1075 Unincorporated Areas of Jefferson County, Town of Jefferson City. Approximately 1,050 feet downstream of Russell Avenue +1075 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Baneberry Maps are available for inspection at 667 Harrison Ferry Road, Baneberry, TN 37890. Town of Dandridge Maps are available for inspection at P.O. Box 249, Dandridge, TN 37725. Town of Jefferson City Maps are available for inspection at P.O. Box 530, 112 West Broadway Boulevard, Jefferson City, TN 37760. Unincorporated Areas of Jefferson County Maps are available for inspection at P.O. Box 710, 214 West Main Street, Dandridge, TN 37725. Lawrence County, Tennessee, and Incorporated Areas Docket No.: FEMA-B-7748 Buffalo River Approximately 1,028 feet upstream of confluence of Saw Creek +792 Unincorporated Areas of Lawrence County. Approximately 2,040 feet upstream of State Highway 240 +812 Shoal Creek At New Shoal Creek Dam +759 Unincorporated Areas of Lawrence County. Approximately 8,540 feet downstream of Old Waynesboro Highway +787 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Lawrence County Maps are available for inspection at 240 West Gaines Street, Lawrenceburg, TN 38464. (Catalog of Federal Domestic Assistance No. 97.022, Flood Insurance.) Dated: June 25, 2008. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-15121 Filed 7-2-08; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 08-1406; MB Docket No. 08-12; RM-11414] Radio Broadcasting Service; Dededo, Guam AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In response to a *Notice of Proposed Rule Making,* the Audio Division issues a *Report and Order* granting a petition for rule making filed by Moy Communications, Inc. requesting the allotment of Channel 243C1 at Dededo, Guam. Channel 243C1 can be allotted at Dededo, Guam, in compliance with the Commission's technical engineering requirements, at 13-29-17 North Latitude and 144-49-35 West Longitude with a site restriction of 3.2 kilometers (2 miles) south of Dededo, Guam. DATES: Effective July 28, 2008. ADDRESSES: Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: R. Barthen Gorman, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order,* MB Docket No. 08-12, adopted June 11, 2008, and released June 13, 2008. The *Notice of Proposed Rule Making* proposed the allotment of Channel 243C1 at Dededo, Guam. See 73 FR 9515, published February 21, 2008. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, D.C. 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com* . The Commission will send a copy of this *Report and Order* 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). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated 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. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Guam, is amended by adding Dededo, Channel 243C1. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division Media Bureau. [FR Doc. E8-14891 Filed 7-2-08; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 08-1403; MB Docket No. 07-211; RM-11400] Radio Broadcasting Services; Harper, TX AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division, at the request of Katherine Pyeatt, allots FM Channel 256C3 at Harper, Texas, as that community's first local service. Channel 259C3 can be allotted at Harper, Texas, in compliance with the Commission's minimum distance separation requirements with a site restriction of 12.9 km (8.0 miles) east of Harper at the following reference coordinates: 30-16-20 North Latitude and 99-07-25 West Longitude. Concurrence in the allotment by the Government of Mexico is required because the proposed allotment is located within 320 kilometers (199 miles) of the U.S.-Mexican border. Although Mexican concurrence has been requested, notification has not been received. If a construction permit for Channel 228C3 at Paulden, Arizona, is granted prior to receipt of formal concurrence by the Mexican government, the authorization will include the following condition: “Operation with the facilities specified herein for Paulden, Arizona, is subject to modification, suspension, or termination without right to hearing, if found by the Commission to be necessary in order to conform to the Mexico-United States FM Broadcast Agreement, or if specifically objected to by the Government of Mexico.” In addition, the allotment of Channel 256C3 at Harper, Texas, is subject to the final outcome of MM Docket No. 00-148 and MB Docket No. 05-112, and the Harper channel will not be available for auction until the dismissals of mutually-exclusive counterproposals in those proceedings are final. DATES: Effective July 28, 2008. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Deborah Dupont, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order* , MB Docket No. 07-211, adopted June 11, 2008, and released June 13, 2008. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20554,
(800)378-3160, or via the company's Web site, *http://www.bcpiweb.com* . The Commission will send a copy of this *Report and Order* 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). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated 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. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under Texas, is amended by adding Harper, Channel 256C3. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E8-15148 Filed 7-2-08; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 070718369-8731-02] RIN 0648-AV34 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 30A AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues this final rule to implement Amendment 30A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico
(FMP)prepared by the Gulf of Mexico Fishery Management Council (Council). This final rule establishes accountability measures for the commercial and recreational fisheries for greater amberjack and gray triggerfish, establishes commercial quotas for greater amberjack and gray triggerfish, establishes a recreational quota for greater amberjack and recreational catch limits for gray triggerfish, increases the commercial and recreational minimum size limit for gray triggerfish, increases the recreational minimum size limit for greater amberjack, and reduces the greater amberjack bag limit to zero for captain and crew of a vessel operating as a charter vessel or headboat. In addition, Amendment 30A establishes management targets and thresholds for gray triggerfish consistent with the requirements of the Sustainable Fisheries Act. This final rule is intended to end overfishing of greater amberjack and gray triggerfish and to rebuild these stocks to sustainable levels. DATES: This final rule is effective August 4, 2008. ADDRESSES: Copies of the Final Supplemental Environmental Impact Statement (FSEIS), the Final Regulatory Flexibility Analysis (FRFA), and the Record of Decision
(ROD)may be obtained from Peter Hood, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone 727-824-5305; fax 727-824-5308; e-mail peter.hood@noaa.gov. FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727-824-5305; fax 727-824-5308; e-mail *peter.hood@noaa.gov* . SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). On March 31, 2008, NMFS published a notice of availability of Amendment 30A and requested public comments (73 FR 16829). On April 8, 2008, NMFS published the proposed rule to implement Amendment 30A and requested public comments (73 FR 19040). NMFS approved Amendment 30A on June 20, 2008. The rationale for the measures in Amendment 30A is provided in the amendment and in the preamble to the proposed rule and is not repeated here. Comments and Responses NMFS received one public comment on Amendment 30A and the proposed rule. The following is a summary of the comment and NMFS' response. *Comment 1* : Although management measures appear to be sufficient to rebuild greater amberjack and gray triggerfish stocks, increases in size limits can lead to an increased number of dead discards if assumptions about angler behavior, bycatch mortality, and the reproductive benefits to the stock are not met. Therefore, it is important that accountability measures are sufficient to identify and to ensure pay back of any overage in mortality in a timely fashion so as not to derail the rebuilding process. *Response* : Levels of total allowable catch
(TAC)required for greater amberjack and gray triggerfish stock rebuilding to occur within their respective rebuilding periods do consider discard mortality. This is a factor considered in the stock assessment, subsequent stock projections, and reductions in harvest derived from raising size limits. To ensure stock rebuilding is constrained to the rebuilding plan, the accountability measures
(AMs)for each stock close the fisheries if the commercial or recreational quotas are reached or are projected to be reached. For the commercial greater amberjack and gray triggerfish fisheries, should the quota be exceeded, the following year's quota would be reduced to account for the overage. To ensure stock rebuilding is proceeding as anticipated, periodic assessment updates are planned to evaluate stock rebuilding. Based on these updates, any appropriate adjustments will be identified and addressed through subsequent rulemaking as necessary. Classification The Administrator, Southeast Region, NMFS, determined that Amendment 30A is necessary for the conservation and management of the greater amberjack and gray triggerfish fisheries in the Gulf of Mexico and that it is consistent with the Magnuson-Stevens Act, and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared an SEIS for this amendment. A notice of availability for the draft SEIS was published on December 14, 2007 (72 FR 71137). A notice of availability for the FSEIS was published on April 18, 2008 (73 FR 21124). An FRFA was prepared. The FRFA incorporates the initial regulatory flexibility analysis, a summary of the significant economic issues raised by public comments, NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of the full analysis is available from NMFS (see ADDRESSES ). A summary of the FRFA follows. This final rule will directly affect vessels that operate in the Gulf of Mexico commercial reef fish fishery and for-hire reef fish fisheries, and reef fish dealers or processors. The Small Business Administration
(SBA)has established size criteria for all major industry sectors in the U.S. including fish harvesters, for-hire operations, fish processors, and fish dealers. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all affiliated operations worldwide. For for-hire operations, the other qualifiers apply, and the annual receipts threshold is $6.5 million (NAICS code 713990, recreational industries). For seafood processors and dealers, rather than a receipts threshold, the SBA uses an employee threshold of 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all affiliated operations for a seafood processor and 100 or fewer persons for a seafood dealer. Due to incomplete 2006 and 2007 data at the time the assessments were conducted, 2005 fishing data were used to evaluate the expected economic impacts of the final actions. A commercial reef fish permit is required to operate in the Gulf of Mexico commercial reef fish fishery, and a moratorium on the issuance of new permits has been in effect since 1992. On July 1, 2005, 1,209 commercial reef fish permits were either active (i.e., not expired--1,118 permits) or expired but eligible for renewal (91 permits), and this is considered to comprise the universe of commercial harvest operations in the fishery. However, 1,285 vessels reported reef fish landings in 2005, including vessels that transferred permits during the year. While all commercial reef fish permitted vessels can harvest greater amberjack or gray triggerfish, only 519 vessels landed greater amberjack, and 477 vessels landed gray triggerfish in 2005. The annual average gross revenue and net income per vessel for vessels in the greater amberjack or gray triggerfish fishery is unknown. For all vessels in the commercial reef fish fishery, the average annual gross and net revenue, respectively, for vertical line vessels are estimated to range from approximately $24,100 (2005 dollars; $6,800 net revenue) to $110,100 ($28,500 net revenue), while the values for bottom longline vessels are approximately $87,600 (2005 dollars; $15,000 net revenue) to $117,000 ($25,500 net revenue). Some fleet behavior is known to exist in the commercial reef fish fishery, but the extent of such is unknown, though the maximum number of permits reported to be owned by the same entity is six. Additional permits in this and other fisheries (and associated revenues) may be linked through affiliation rules, but these links cannot be made using existing data. Nevertheless, based on the average annual gross revenue information for all commercial reef fish vessels, NMFS determines, for the purpose of this analysis, that all commercial reef fish entities potentially affected by this final rule are small business entities. An estimated 1,692 vessels are permitted to operate in the Gulf of Mexico reef fish for-hire fishery. It is unknown how many of these vessels operate as headboats or charterboats, a distinction which is based on pricing behavior, and individual vessels may operate as both types of operations at different times. However, 76 vessels participate in the Federal headboat logbook program. Several entities own multiple for-hire permits, with at least one entity owning as many as 12 permits. The average charterboat is estimated to generate approximately $77,000 (2005 dollars) in annual revenues, while the comparable figure for an average headboat is approximately $404,000 (2005 dollars). Based on the average annual gross revenue information for these vessels, NMFS determines, for the purpose of this analysis, that all for-hire entities potentially affected by this final rule are small business entities. An estimated 227 dealers are permitted to buy and sell Gulf of Mexico reef fish species. Based on vessel logbook records for 2005, 192 of these dealers actively bought and sold greater amberjack, while 177 bought and sold gray triggerfish. All reef fish processors would be included in this total since a processor must be a dealer. Dealers often hold multiple types of permits and operate in both Federal and state fisheries. It is unknown what percentage of any of the average dealer's business comes from either greater amberjack or gray triggerfish. Average employment information per reef fish dealer is unknown. Although dealers and processors are not synonymous entities, total employment for reef fish processors in the Southeast is estimated at approximately 700 individuals, both part- and full-time. While all processors must be dealers, a dealer need not be a processor. Further, processing is a much more labor-intensive exercise than dealing. Therefore, given the employment estimate for the processing sector and the total number of dealers operating in the reef fish fishery, NMFS determines that the average number of employees per dealer and processor does not surpass the SBA employment benchmark and, NMFS determines, for the purpose of this analysis, that all dealers potentially affected by this rule are small entities. This final action will reduce greater amberjack harvests by 26 percent in the recreational sector and 43 percent in the commercial sector, and gray triggerfish harvests by 60 percent and 61 percent for the recreational and commercial sectors, respectively. Although the expected harvest reductions are large, the subsequent impact on vessel profits will depend on the importance of these species to vessel revenues. In the commercial reef fish fishery, only 120 vessels landed more than 1,000 lb (454 kg) of greater amberjack in 2005 and only 31 vessels landed more than 10,000 lb (4,536 kg) of greater amberjack. For gray triggerfish, 44 vessels landed more than 1,000 lb (454 kg), and no vessels landed more than 10,000 lb (4,536 kg). Thus, 399 vessels, or approximately 77 percent of the fleet, landed less than 1,000 lb (454 kg) of greater amberjack, while 433 vessels, or approximately 91 percent of the fleet landed less than 1,000 lb (454 kg) of gray triggerfish. This suggests that relatively few vessels in the commercial reef fish fishery are dependent on greater amberjack, and even fewer would be expected to be dependent on gray triggerfish. The final actions for greater amberjack are projected to result in a reduction of approximately $1.3 million in net revenues to commercial reef fish vessels over the 2008-2012 rebuilding period, or approximately $260,000 per year. This annual loss equates to an average of approximately $500 if distributed across all vessels landing greater amberjack
(519)or $2,200 per vessel if distributed across just vessels landing greater than 1,000 lb (454 kg) (120). The final actions for gray triggerfish are projected to result in a reduction of approximately $716,000 in net income during the 2008-2012 rebuilding period, or $145,200 per year. This annual loss equates to approximately $300 per vessel if distributed among all vessels landing gray triggerfish
(477)or $3,300 if distributed across only those vessels landing more than 1,000 lb (454 kg) of gray triggerfish (44). While for-hire vessels do not derive revenues from greater amberjack or gray triggerfish sales, most vessels target these species at some time during the year. Assuming angler demand declines in response to the restrictions for these species, revenue and profit reductions can be projected. As a result of the final actions for greater amberjack, the for-hire sector is projected to experience a loss in net income of approximately $763,000 per year, while the final actions for gray triggerfish are projected to result in a loss of approximately $514,000 per year. If these losses were distributed equally across all vessels in the fishery, the resulting loss per vessel would be less than $800 per vessel. Some vessels are likely more dependent on these species than other vessels due to where they fish and client preferences and, thus, may be more severely impacted by the management measures. Three alternatives, including the status quo, were considered for the action to modify the greater amberjack rebuilding plan. The final action, which is the status quo, will maintain the current stepped rebuilding plan, but will update the plan with data from the 2006 stock assessment. The first alternative to the final action would use the same yield projections as the final action, but would increase the TAC annually instead of stepped increases. The second alternative to the final action would also increase the TAC annually but would limit the total harvest over the 5 years of the plan to equal that under the final action. These alternatives were not selected for the final action because the Council believed the step increases will allow greater stability to the fishery while still allowing harvest to progressively increase. Three alternatives, including the status quo, were considered for the action to specify accountability measures for greater amberjack. The final action will implement corrective action based on single-year fishery harvest totals. Because the greater amberjack fishery is nearer the end of the rebuilding plan, the single-year approach provides the greatest probability of ending overfishing and rebuilding the stock. The first alternative to the final action, the status quo, would not specify accountability measures and would not satisfy the requirements of the Magnuson-Stevens Act and was therefore rejected. The second alternative to the final action would trigger accountability measures on the single year projections for the 2008 fishing season, but would trigger accountability measures through multi-year analyses thereafter. This alternative was not selected for the final action because multi-year assessments and corrective actions would be expected to delay stock rebuilding, resulting in slower realization of benefits from a rebuilt stock. Five alternatives, including the status quo, were considered for the action to establish management measures for the greater amberjack recreational fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. This alternative would not, therefore, achieve the Council's objective. The second alternative to the final action would impose a higher size limit and, thus, was rejected because it would result in more adverse economic impacts. The third alternative to the final action would impose a 2-month seasonal closure. Since a closure would result in trip cancellations, this alternative would result in more adverse economic impacts than the final action which will simply restrict the catch but otherwise allow the fishery to remain open. The last alternative to the final action would impose both a seasonal closure and a higher size limit, and, thus, was rejected because it would result in even more adverse economic impacts. Five alternatives, including the status quo, were considered for the action to establish management measures for the greater amberjack commercial fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. This alternative would not, therefore, achieve the Council's objective and thus was rejected. The second alternative to the final action would impose a trip limit. Although this alternative would achieve the same reduction as the final action, it was rejected because it would tend to impose more restrictive limits on fishing operations as to eventually result in more adverse economic impacts. The third alternative to the final action would impose an even lower trip limit and thus it was rejected because it was estimated to result in more adverse economic impacts than the final action. The last alternative to the final action would add a 3-month seasonal closure to the existing 3-month closure. Although this would achieve about the same harvest reduction as the final action, fishermen have already indicated they lost a good part of their market to the existing 3-month closure so that adding three more months to the existing closed months would only exacerbate the situations fishermen would face. For these reasons, this alternative was rejected. Three alternatives, including sub-options and the status quo, were considered for the action to define stock benchmarks for gray triggerfish. The first alternative to the final action, the status quo, would maintain current definitions of optimum yield and maximum fishing mortality threshold, but would not set an overfished threshold (minimum stock size threshold (MSST)), which is a required component of a fishery management plan. This alternative would not, therefore, achieve the Council's objective and thus was rejected. The second alternative to the final action would establish a less conservative MSST, which would increase the risk of not maintaining a healthy resource relative to the final action. For this reason, this alternative was rejected. Three alternatives, including the status quo, were considered for the action to establish a gray triggerfish rebuilding plan. The first alternative to the final rebuilding plan, the status quo, would not establish a gray triggerfish rebuilding plan and thus it was rejected because it would not achieve the Council's objective. The second alternative to the final rebuilding plan would establish a stepped plan rather than the constant fishing mortality rebuilding plan under the final action. This alternative is projected to result in greater adverse short-term economic impacts than the final action, and thus was rejected. Five alternatives were considered for the action to specify accountability measures for gray triggerfish. The final action will impose accountability measures for the recreational sector, with the period of evaluation increasing from a 1-year to a 2-year to a 3-year running average of landings as the rebuilding plan progresses. For the commercial sector, the final action will evaluate landings on an annual basis. The first alternative to the final gray triggerfish accountability measures, the status quo, would not specify accountability measures and thus it was rejected because it would not satisfy the requirements of the Magnuson-Stevens Act. The second and third alternatives to the final accountability measures would require corrective action only if the combined harvests of both the commercial and recreational sectors exceed the overall target levels, differing by the type of corrective action, allowing either a range of management harvest reduction tools, such as trip, bag, season, or minimum size adjustments, or limiting the corrective action to season length (closure). These alternatives were not chosen for the final action because they would not preserve the balance of sector allocations and would not achieve the enhanced stock recovery benefits of the final action. The fourth alternative to the final accountability measures would impose the same sector-specific and period-of-assessment requirements of the final action, but would result in a delay of corrective action because such action could only be imposed via temporary rulemaking as opposed to simple notice under the final action. This delay would be expected to increase the severity of corrective actions, thereby imposing greater adverse economic impacts relative to the final action. Two alternatives, including the status quo, were considered for the action on regional gray triggerfish management. The final action is the status quo, which will not establish different gray triggerfish management measures for the eastern and western Gulf. The only other alternative to the final action would divide the management area for gray triggerfish into two regions, namely, east and west of the Mississippi River, and limit all gray triggerfish restrictive measures to the region east of the Mississippi River. This alternative would be inconsistent with the identification of the species as a single stock throughout the Gulf of Mexico and would not rebuild the resource uniformly throughout its range and, thus, would not achieve the Council's objective. Four alternatives, including the status quo, were considered for the action to establish management measures for the recreational gray triggerfish fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. For these reasons, this alternative was rejected. The second alternative to the final action would establish a bag limit and increase the size limit for gray triggerfish while the third alternative to the final action would impose an even lower bag limit but retain the size limit for gray triggerfish. These two additional alternatives would not achieve the necessary harvest reductions for the recreational sector and would not, therefore, achieve the Council's objective. Thus these alternatives were rejected. Six alternatives, including the status quo, were considered for the action to establish management measures for the commercial gray triggerfish fishery. The first alternative to the final suite of management measures, the status quo, would not alter current management measures and would not result in sufficient harvest reduction to satisfy the rebuilding plan. Thus this alternative was rejected. The other four alternatives to the final action would:
(1)Establish a very low trip limit;
(2)increase the size limit;
(3)increase the size limit and impose a trip limit; and,
(4)slightly increase the size limit and impose a lower trip limit. These four other alternatives are projected to result in greater harvest reductions than are required to satisfy the rebuilding plan. Also, these alternatives were not selected for the final action because specifying a quota in addition to the minimum size limit, as will occur under the final action, was expected to provide greater control over total harvest and better ensure that rebuilding plan goals are realized. List of Subjects in 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. Dated: June 27, 2008 John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 622 is amended as follows: PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 622.2, the definitions of “accountability measures” and “annual catch limit” are added in alphabetical order to read as follows: § 622.2 Definitions and acronyms. *Accountability measure* means a management control implemented such that overfishing is prevented, where possible, and mitigated if it occurs. *Annual catch limit (ACL)* means the level of catch that serves as the basis for invoking accountability measures. 3. In § 622.37, paragraphs (d)(3)(i) and (d)(3)(iv) are revised to read as follows: § 622.37 Size limits.
(d)* * *
(3)* * *
(i)Gray triggerfish -14 inches (35.6 cm), fork length.
(iv)Greater amberjack -30 inches (76 cm), fork length, for a fish taken by a person subject to the bag limit specified in § 622.39(b)(1)(i) and 36 inches (91.4 cm), fork length, for a fish taken by a person not subject to the bag limit. 4. In § 622.39, paragraph (b)(1)(i) is revised to read as follows: § 622.39 Bag and possession limits.
(b)* * *
(1)* * *
(i)Greater amberjack—1. However, no greater amberjack may be retained by the captain or crew of a vessel operating as a charter vessel or headboat. The bag limit for such captain and crew is zero. 5. In § 622.42, paragraphs (a)(1)(v) and (a)(1)(vi) are added, and paragraph (a)(2) is revised to read as follows: § 622.42 Quotas.
(a)* * *
(1)* * *
(v)Greater amberjack—503,000 lb (228,157 kg), round weight.
(vi)Gray triggerfish—(A) *For fishing year 2008* —80,000 lb (36,287 kg), round weight.
(B)For fishing year 2009 -93,000 lb (42,184 kg), round weight.
(C)*For fishing year 2010 and subsequent fishing years* —106,000 lb (48,081 kg), round weight.
(2)*Recreational quotas* . The following quotas apply to persons who fish for Gulf reef fish other than under commercial vessel permits for Gulf reef fish and the applicable commercial quotas specified in paragraph (a)(1) of this section.
(i)*Recreational quota for red snapper* . The recreational quota for red snapper is 2.45 million lb (1.11 million kg), round weight.
(ii)*Recreational quota for greater amberjack* . The recreational quota for greater amberjack is 1,368,000 lb (620,514 kg), round weight. 6. In § 622.43, paragraph (a)(1)(iii) is added to read as follows: § 622.43 Closures.
(a)* * *
(1)* * *
(iii)*Recreational quota for greater amberjack* . The bag and possession limit for greater amberjack in or from the Gulf EEZ is zero. 7. Section 622.49 is added to subpart C to read as follows: § 622.49 Accountability measures.
(a)*Gulf reef fish* —(1) *Greater amberjack* —(i) *Commercial fishery* . If commercial landings, as estimated by the SRD, reach or are projected to reach the applicable quota specified in § 622.42(a)(1)(v), the Assistant Administrator for Fisheries, NOAA,
(AA)will file a notification with the Office of the Federal Register to close the commercial fishery for the remainder of the fishing year. In addition, if despite such closure, commercial landings exceed the quota, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year to reduce the quota for that following year by the amount of the overage in the prior fishing year.
(ii)*Recreational fishery* . If recreational landings, as estimated by the SRD, reach or are projected to reach the applicable recreational quota specified in § 622.42(a)(2)(ii), the AA will file a notification with the Office of the Federal Register, to close the recreational fishery for the remainder of the fishing year. In addition, if despite such closure, recreational landings exceed the quota, the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year, to reduce the length of the recreational fishing season for the following fishing year by the amount necessary to recover the overage from the prior fishing year. Further, during that following year, if necessary, the AA may file additional notification with the Office of the Federal Register to readjust the reduced fishing season to ensure recreational harvest achieves but does not exceed the intended harvest level.
(2)*Gray triggerfish* —(i) *Commercial fishery* . If commercial landings, as estimated by the SRD, reach or are projected to reach the applicable quota specified in § 622.42(a)(1)(vi), the AA will file a notification with the Office of the Federal Register to close the commercial fishery for the remainder of the fishing year. In addition, if despite such closure, commercial landings exceed the applicable annual catch limit (ACL), the AA will file a notification with the Office of the Federal Register, at or near the beginning of the following fishing year, to reduce the quota for that following year by the amount the prior-year ACL was exceeded. The applicable ACLs are 105,000 lb (47,627 kg) for 2008, 122,000 lb (55,338 kg) for 2009, and 138,000 lb (62,596 kg) for 2010 and subsequent fishing years.
(ii)*Recreational fishery* . If recreational landings, as estimated by the SRD, exceed the applicable ACL, the AA will file a notification with the Office of the Federal Register reducing the length of the following recreational fishing season by the amount necessary to ensure recreational landings do not exceed the recreational target total allowable catch for that following fishing year. The applicable ACLs are 394,000 lb (178,715 kg) for 2008, 426,000 lb (193,230 kg) for 2009, and 457,000 lb (207,291 kg) for 2010 and subsequent fishing years. The recreational target total allowable catches are 356,000 lb (161,479 kg) for 2009 and 405,000 lb (183,705 kg) for 2010 and subsequent fishing years. Recreational landings will be evaluated relative to the applicable ACL as follows. For 2008, only 2008 recreational landings will be compared to the ACL; in 2009, the average of 2008 and 2009 recreational landings will be compared to the ACL; and in 2010 and subsequent fishing years, the 3-year running average recreational landings will be compared to the ACL.
(b)[Reserved] [FR Doc. E8-15151 Filed 7-2-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 080130104-8560-02] RIN 0648-AW46 Atlantic Highly Migratory Species; Renewal of Atlantic Tunas Longline Limited Access Permits; Atlantic Shark Dealer Workshop Attendance Requirements AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: This final rule amends the regulations governing the renewal of Atlantic tunas longline limited access permits (LAPs), and amends the workshop attendance requirements for businesses issued Atlantic shark dealer permits. Specifically, these regulatory changes allow for the renewal of Atlantic tunas longline LAPs that have been expired for more than one year by the most recent permit holder of record, provided that the applicant has been issued a swordfish LAP (other than a handgear LAP) and a shark LAP, and all other requirements for permit renewal are met. Also, this rule amends the Atlantic Shark Identification Workshop requirements by: specifying that a workshop certificate be submitted upon permit renewal, and later possessed and available for inspection, for each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade (rather than for each location listed on their dealer permit); and requiring that extensions of a dealer's business, such as trucks or other conveyances, must possess a copy of a valid dealer or proxy certificate issued to a place of business listed on the dealer permit. DATES: This final rule is effective August 4, 2008. ADDRESSES: Copies of the final Regulatory Impact Review/Final Regulatory Flexibility Analysis (Final RIR/FRFA); and, related documents including a 2007 Final Environmental Assessment
(EA)and final rule (72 FR 31688, June 7, 2007) implementing revised vessel upgrading regulations for vessels issued Atlantic tunas longline, swordfish, and shark LAPs; and the 2006 Final Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP) and its final rule (71 FR 58058, October 2, 2006) implementing Atlantic Shark Identification Workshops are available from the HMS Management Division website at: *http://www.nmfs.noaa.gov/sfa/hms* or by contacting Richard A. Pearson (see FOR FURTHER INFORMATION CONTACT ). FOR FURTHER INFORMATION CONTACT: Richard A. Pearson, by phone: 727-824-5399; by fax: 727-824-5398. SUPPLEMENTARY INFORMATION: Background Atlantic tuna and swordfish fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA). Atlantic sharks are managed under the authority of the Magnuson-Stevens Act. The Consolidated HMS FMP is implemented by regulations at 50 CFR part 635. Renewal of Atlantic Tunas Longline LAPs LAPs were first implemented in HMS fisheries in 1999 primarily to provide a limit on harvesting capacity in Atlantic swordfish and shark fisheries to reduce the likelihood of exceeding the available quota for these species, and to facilitate other fishery management measures implemented at the time. The Atlantic tunas longline LAP was also established at that time because of the potential for encountering swordfish and sharks when fishing with pelagic longline
(PLL)gear for Atlantic tunas, and vice-versa. In recognition of the interrelationship between these longline fisheries, the Atlantic tunas longline LAP complemented the management measures that had been developed for Atlantic swordfish and shark. Since 1999, vessel owners have been required to simultaneously possess three permits (Atlantic tunas longline; swordfish directed or incidental; and, shark directed or incidental) in order to retain Atlantic tunas caught with longline gear, or to retain swordfish caught with any gear other than handgear. An Atlantic tunas longline LAP is only considered valid, or useable, if the vessel has also been issued both a shark LAP and a swordfish LAP (other than handgear). Similarly, a swordfish LAP (other than handgear) is only considered valid, or useable, when a vessel has also been issued both a shark LAP and an Atlantic tunas longline LAP. The current regulations for each of these permits specify that only persons holding non-expired LAPs in the preceding year are eligible to renew those permits. In 2007, NMFS identified approximately 40 vessel owners that had allowed their Atlantic tunas longline LAPs to lapse for more than one year, thus making them ineligible to renew that permit. In most cases, the vessel owners had maintained their accompanying swordfish and shark LAPs through timely renewal. However, because they are ineligible to renew their Atlantic tunas longline LAP, they are not currently allowed to fish for tunas with PLL gear or to retain swordfish, even though they have been issued a swordfish permit. Currently, the number of available Atlantic tunas longline LAPs is insufficient to match the number of available swordfish and shark incidental or directed permits, thus rendering many swordfish permits invalid, or unusable, because all three permits are required to retain swordfish (with any gear other than handgear). The scope of this problem was not fully recognized until September 2007, when NMFS was determining which vessels qualified for revised vessel upgrading regulations (72 FR 31688, June 7, 2007), depending upon whether the vessel was concurrently issued a directed or incidental swordfish LAP, a directed or incidental shark LAP, and an Atlantic tunas longline LAP. At that time, NMFS learned that approximately 40 vessel owners had inadvertently failed to renew their Atlantic tunas longline LAP because of operational constraints associated with the Atlantic tunas longline permit issuance system, or because of significant differences in the renewal procedures for swordfish/shark LAPs and the Atlantic tunas longline LAP. There was confusion within the fishing industry regarding the renewal, issuance, eligibility, and applicability of the one-year renewal requirement for the Atlantic tunas longline LAP because the operational procedures for renewing an Atlantic tunas longline LAP were substantially different than for swordfish and shark LAPs. The Atlantic tunas longline permit renewal system was originally developed as a self-service, web-based electronic system that was administered by a non-NMFS contractor for the primary purpose of issuing open access permits. In contrast, swordfish and shark LAPs are issued and renewed by submitting paper applications to NMFS' Southeast Region permits office. A significant difference between the two permit systems is that the Atlantic tunas longline LAP cannot be held in “no vessel” status, meaning that the permit cannot be renewed without specifying a vessel. An Atlantic tunas longline permit holder must either move the permit to a replacement vessel or forfeit the permit. Many vessel owners indicated that they were not aware of these options, or misunderstood them, and let their Atlantic tunas longline LAP expire because they no longer owned a vessel but thought they remained eligible to renew the permit. Another difference between the Atlantic tunas longline LAP and swordfish and shark LAPs is that the Atlantic tunas longline LAP does not have a unique permit number associated with it that stays unchanged if the permit is transferred to another vessel, whereas swordfish and shark permits do. Therefore, “ownership” of the Atlantic tunas longline LAP is more difficult to track over time because the permit number changes with each transfer of the permit to another vessel. This final rule amends the HMS regulations to remove the one-year renewal timeframe for Atlantic tunas longline LAPs. This modification will better reflect the operational capabilities of the Atlantic tunas longline permit renewal system and reduce the potential for future confusion. It will allow NMFS, upon receipt of a complete permit application, to reissue an Atlantic tunas longline LAP to the most recent permit holder of record even if the permit had not been renewed within one year of expiration, provided that the applicant has already been issued a swordfish LAP (other than a handgear LAP), a shark LAP, and all other current requirements for permit renewal are met. This final rule does not amend the permit renewal regulations for swordfish and shark LAPs which will continue to specify that only persons holding non-expired swordfish and shark LAPs in the preceding year are eligible to renew those permits. Also, the requirement to possess all three valid LAPs (swordfish incidental or directed; shark incidental or directed; and Atlantic tunas longline) in order to fish for tunas with PLL gear and to retain commercially-caught swordfish (other than with a swordfish handgear LAP) remains unchanged. Thus, the final management measures will not increase the number of Atlantic tunas longline LAPs issued to an amount higher than the number of swordfish LAPs (incidental or directed) that are currently issued or are eligible to be renewed. This action will help to ensure that an adequate number of complementary Atlantic tunas longline LAPs are available for swordfish and shark commercial LAP holders to fish legally for Atlantic swordfish and tunas with PLL gear. Consistent with the Magnuson-Stevens Act and ATCA, it will also help provide a reasonable opportunity for U.S. vessels to more fully harvest the domestic swordfish quota, which is derived from the recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT). This final rule reinforces recent efforts by NMFS to “revitalize” the PLL fishery, recognizing that the North Atlantic stock is almost fully rebuilt (B = 0.99Bmsy) but domestic landings have been well below the U.S. swordfish quota in recent years. In doing so, this action could help the United States retain its historic swordfish quota allocation at ICCAT. Atlantic Shark Dealer Workshop Requirements To improve the identification and reporting of shark species by dealers for accurate quota monitoring and stock assessments, existing HMS regulations at 50 CFR 635.8 require that Atlantic shark dealers attend an Atlantic Shark Identification Workshop and submit a copy of the workshop certificate in order to renew their permit. If a dealer attends and successfully completes a workshop, the dealer will receive a workshop certificate for each location listed on their Atlantic shark dealer permit. If the dealer chooses to send a proxy to a workshop, the existing regulations require them to send a proxy for each location listed on their Atlantic shark dealer permit. Under these regulations, Atlantic shark dealers may not renew their Atlantic shark dealer permit without submitting either a dealer or proxy certificate for each location listed on their Atlantic shark dealer permit. Additionally, Atlantic shark dealers may not act as the “first-receivers” of shark products at any location unless a valid workshop certificate is on the premises of each place of business listed on their shark dealer permit. As described in the final rule for Amendment 2 for the Management of Atlantic Shark Fisheries (73 FR 35778, June 24, 2008), “first-receiver” means any entity, person, or company that takes, for commercial purposes (other than solely for transport), immediate possession of the fish, or any part of the fish, as the fish are offloaded from a fishing vessel of the United States, as defined under § 600.10 of this chapter, whose owner or operator has been issued, or should be have been issued, a valid permit under this part. Since the implementation of these requirements, NMFS has learned that some shark dealers may not be acting as the first receiver of shark products at all of the locations listed on their permit. For example, a dealer may purchase red snapper at one location, and shark at another location. However, because the shark dealer's permit lists both locations as owned by the dealer, including the snapper-only site, the existing regulations require them to submit an Atlantic Shark Identification Workshop certificate (proxy or dealer) upon permit renewal for both the shark site and the snapper site, and to later possess the certificate at both sites. This is an impractical and unnecessary result. When NMFS recognized that the existing regulations required this practice, the agency decided to correct and amend the process. For technical and programmatic reasons, it is not feasible for NMFS to modify the permit database to specify only locations on the shark dealer permit that actually receive shark products if the dealer also has other locations where other species are received. To remedy this situation, the final rule amends the HMS regulations by specifying that, when applying for or renewing an Atlantic shark dealer permit, an applicant must submit an Atlantic Shark Identification Workshop certificate (dealer or proxy) for each place of business listed on the shark dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade, rather than for each location listed on the shark dealer permit. This will eliminate the need for a shark dealer to send a proxy to a workshop to obtain a certificate for a location that does not actually receive Atlantic shark products. Similarly, the requirement to possess, and make available for inspection, an Atlantic Shark Identification Workshop certificate will only be required at locations listed on the dealer permit where sharks are first received rather than from each location listed on the shark dealer permit. Finally, this final rule requires that extensions of a dealer's business, such as trucks or other conveyances, must possess a copy of a valid dealer or proxy certificate issued to a place of business covered by the dealer permit. This will immediately identify trucks or other conveyances as extensions of a NMFS-certified place of business which is eligible to receive Atlantic sharks. With these minor amendments, the objective of improved identification and reporting of shark species is expected to continue, while impacts on dealers may be lessened. Clarification of Buoy Gear Usage In this final rule, NMFS also makes a technical clarification in the “gear operation and deployment restrictions” section of the HMS regulations regarding which permit holders are authorized to utilize buoy gear. This technical clarification does not substantively change the buoy gear usage requirements. It clarifies that only vessels issued a valid directed or handgear swordfish LAP may possess and utilize buoy gear. This clarification addresses questions and comments received from constituents, and ensures consistency with existing HMS regulations at § 635.71(e)(10) which already specify that only these permit holders may possess or utilize buoy gear. A description of the alternatives for this action was provided in the Classification section of the proposed rule (73 FR 19795, April 11, 2008) and is not repeated here. Additional information can be found in the Final RIR/FRFA prepared for this rule and is available from NMFS (see ADDRESSES ). The public comment period for the proposed rule (73 FR 19795, April 11, 2008) was open from April 11, 2008, to May 12, 2008. During that time, NMFS conducted three public hearings in Gloucester, MA (May 1, 2008), St. Petersburg, FL (May 6, 2008), and Silver Spring, MD (May 7, 2008). In addition, the HMS Advisory Panel (HMS AP) received a presentation and was provided with an opportunity to comment on the proposed rule on April 16, 2008. The Agency received six written or electronic comment letters, and several verbal comments from the HMS AP and at public hearings. A summary of the major comments (26 total) received, along with NMFS' response, is provided below. Response to Comments These comments and responses are divided into two major categories: those that discuss the renewal of Atlantic tunas longline LAPs (23 comments) and those that discuss Atlantic shark dealer workshop requirements (3 comments). Renewal of Atlantic Tunas Longline LAPs *Comment 1:* All longlines should be banned. It is time for NMFS to prohibit these forty mile longlines from being used in the ocean and killing everything in their path. The proposed rule is far too lenient. *Response:* The U.S. PLL fishery provides jobs and income for fishery participants, and wholesome food products for consumers. NMFS continually assesses the PLL fishery and, if necessary, implements management measures to ensure that bycatch and bycatch mortality of protected and nontarget species are minimized to the extent practicable. In addition, based upon the best scientific information available, the agency develops and implements management measures to prevent overfishing and rebuild overfished stocks. Some of these management measures include the mandatory use of circle hooks in the PLL fishery, bait restrictions, gear requirements, mandatory training at release and disentanglement workshops, mandatory release and disentanglement gear, time/area closures, mandatory vessel monitoring systems, logbook and reporting requirements, observer coverage, minimum size limits, catch limits, annual quotas, target catch requirements, limited access permits, and vessel upgrading restrictions. The implementation of these measures has resulted in a well-managed domestic fishery. This final rule is not expected to have significant adverse environmental impacts because the resultant number of authorized PLL vessels will not exceed the number of vessels that are currently issued, or are eligible to renew, swordfish directed and incidental permits. At most, 40 Atlantic tunas longline LAPs could be reissued as a result of this rule, but all of these permits have been issued before, since LAPs were first required in 1999. *Comment 2:* The Atlantic tunas longline LAP was established eight or nine years ago. Why is NMFS only finding out now that 40 former permit holders did not renew their permits by the required deadline? *Response:* The magnitude of this issue came to the forefront during implementation of revised vessel upgrading regulations for vessels which were concurrently issued, or eligible to renew, swordfish, shark and Atlantic tunas longline LAPs in August 2007. Prior to that time, NMFS recognized that some permit holders had failed to renew their Atlantic tunas LAP within one year of expiration, but the agency was not aware that many of these same permit holders had maintained their swordfish and shark LAPs through timely renewal. NMFS found that some permit holders had inadvertently let their Atlantic tunas longline LAP expire because they misunderstood the differences in the permit renewal process for swordfish/shark LAPs and Atlantic tunas longline LAPs (as discussed in detail in the proposed rule (73 FR 19795, April 11, 2008)). NMFS also found that some swordfish and shark permit holders were not able to renew their Atlantic tunas longline LAP because they did not possess a vessel; the tuna permitting system cannot issue a permit without vessel information. For these reasons, the agency is amending the HMS regulations to be more reflective of the operational capabilities of the Atlantic tunas longline permit issuance system and to reduce confusion regarding the renewal of this permit. *Comment 3:* If I have an incidental swordfish permit and a shark permit, is NMFS going to issue me a tuna longline permit as a result of this rule? *Response:* Not necessarily. This final action only amends the regulations regarding the renewal of expired Atlantic tunas longline LAPs. Only the most recent permit holder of record will be eligible to renew that permit even if it has been expired for more than one year. The Atlantic tunas longline LAP remains a limited access permit. As stated in 50 CFR 635.4(d)(4), the permit may only be obtained through transfer from current owners. This means that the concurrent possession, or issuance, of swordfish and shark directed or incidental LAPs does not automatically entitle a person to an Atlantic tunas longline LAP. It must still be obtained through permit transfer. *Comment 4:* Will reissuing 40 Atlantic tunas longline LAPs create the complementary balance of permits that NMFS is hoping to achieve, or will the agency have to issue more permits? How many shark and swordfish boats are looking for Atlantic tunas longline LAPs? *Response:* There are approximately 40 vessels that have been issued, or are eligible to renew, swordfish and shark permits that need an Atlantic tunas longline LAP to complete the three-permit combination that is necessary to retain swordfish (other than with handgear) or to fish for tunas with PLL gear. As of August 6, 2007, there were approximately 288 directed and incidental swordfish permits, 542 directed and incidental shark permits, and 268 Atlantic tunas longline LAPs that were issued or were eligible for renewal. Of these, 245 vessels were concurrently issued, or were eligible to renew, all three permits. The availability of the Atlantic tunas longline LAP has been a limiting factor in the number of vessels that are eligible to retain swordfish or fish for HMS with PLL gear. Renewing approximately 40 Atlantic tunas longline LAPs should help to complement the available number of swordfish permits. Because most of the 40 vessels affected by this final rule have already been issued swordfish and shark LAPs, the number of authorized PLL vessels could potentially increase from approximately 245 to 285. However, it is not known if every former permit holder will apply to renew the Atlantic tunas longline LAP, so the actual increase in the number of PLL vessels could be less. *Comment 5:* How many inactive PLL vessels are there that have been issued the three necessary permits? *Response:* There are about 131 vessels out of 245 vessels authorized to fish with PLL gear that did not report any landings in the HMS logbook in 2006. These 131 vessels are considered to be currently inactive in the HMS fishery. *Comment 6:* I support the proposed rule and other actions to increase U.S. swordfish landings. The U.S. swordfish quota is going to be reduced at ICCAT. When the swordfish quota is reduced, it will adversely affect both recreational and commercial fishermen. There are people that cannot currently fish and contribute to catching the domestic swordfish quota because they do not possess the three necessary permits. There are many reasons why people did not renew their permits. Some people were laid up due to illness or vessel maintenance. There is no reason for these permits to be latent. They should be reissued and put back into circulation so that shark and swordfish permit holders can get back to landing product. The United States needs to have more boats on the water fishing, and the boats must have the proper permits to do that. *Response:* This final rule could potentially increase the number of vessels authorized to retain swordfish, and fish for tunas with PLL gear, to a level approximately equal to the number of vessels issued a swordfish LAP. However, it is not known if every former Atlantic tunas longline permit holder affected by this rule will apply to renew the permit, so the actual increase in permit numbers and fishing vessels may be less than 40. This rule will remove an administrative barrier to renewing the Atlantic tunas longline LAP, and provide an opportunity for some current swordfish and shark permit holders to reenter the PLL fishery. If they choose not to fish, these permit holders could renew their Atlantic tunas longline LAP to “complete” their HMS permit package and then transfer their permits to another vessel owner. In either case, more HMS three-permit combinations could become available for use in the PLL fishery as a result of this rule. *Comment 7:* The proposed action will not increase domestic swordfish landings enough to have any impact at ICCAT. *Response:* This final action is not likely to immediately increase domestic swordfish landings to a level where the United States will meet or exceed its domestic swordfish quota. However, it will reduce an administrative barrier to renewing the Atlantic tunas longline LAP, and provide an opportunity for some current permit holders with swordfish and shark LAPs to reenter the PLL fishery. It will help to reduce the rate of attrition in the HMS PLL fishery by increasing the overall number of available “complete” PLL permit packages. If all 40 vessel owners affected by this rule immediately obtain their Atlantic tunas longline LAP and begin fishing for swordfish, landings could significantly increase. *Comment 8:* Why doesn't the Atlantic tunas longline LAP have a “no vessel” status? *Response:* The Atlantic tunas longline LAP does not have a “no vessel” status because the permit issuance system was originally designed for open access permits, which do not need “no vessel” status, such as the General category tuna permit and the HMS Angling category permit. In order to renew a permit, the online system requires applicants to enter vessel information. After the permit is issued, the permit number remains associated with the vessel and its U.S. Coast Guard documentation or state registration number. This system works well for open access permits, which do not have a “sunset” requirement specifying that the permit must be renewed within one year of expiration. However, if an Atlantic tunas longline permit holder sells their vessel but legally retains the limited access permit, the permit cannot be renewed without entering vessel information. Problems with the “sunset” requirement have arisen when a legally-retained permit was not issued to a vessel within one year of expiration. This final rule will allow Atlantic tunas longline LAPs to be retained, and later renewed, by the most recent permit holder of record even if the permit has not been issued to a vessel for more than one year. In that regard, this final rule accomplishes the same objective as providing “no vessel” status for Atlantic tunas longline LAPs. *Comment 9:* NMFS should get rid of “no vessel” permit status. Latent permits have no effect on increasing swordfish tonnage. *Response:* NMFS believes it is important for LAP holders to have the ability to retain their permit(s) without possessing a vessel. It provides flexibility to permit holders who originally qualified for an LAP and it facilitates permit transferability. There are many circumstances where a permit holder might not own a vessel, might not be able to fish, or might choose not to fish. For example their vessel may have sunk, been sold, or fishery conditions might preclude participation. Providing LAP holders with the ability to retain their permits without owning a vessel provides time for them to find a suitable replacement vessel, or time to make necessary business decisions. Nevertheless, in a future rulemaking, the Agency may consider alternatives to address latent fishing effort. *Comment 10:* If a legitimate fisherman made a mistake in not renewing their Atlantic tunas longline LAP, they should be allowed to obtain a new permit. To verify this, NMFS should put a specific timeframe or qualification criteria on the 40 vessels with expired permits. In order to obtain a new permit, they must have fished within a certain period of time. If they did not fish within that timeframe, then they should not be reissued the permit. Otherwise, the proposed rule opens a Pandora's box. *Response:* The establishment of restrictive qualification criteria to become eligible for newly reissued permits runs counter to the primary intent of this rulemaking, which is to help ensure that the number of available Atlantic tunas longline LAPs is sufficient to match the number of available swordfish and shark LAPs. There are restrictions associated with this final rule, however. NMFS will reissue Atlantic tunas longline LAPs that have been expired for more than one year only upon receipt of a complete permit renewal application from the most recent permit holder of record, provided that they have also been issued valid swordfish and shark LAPs and all other permit renewal requirements are met. Former permit holders must apply for the Atlantic tunas longline LAP, as NMFS will not automatically reissue the permit to all former permit holders. This action will not increase the number of PLL vessels above the number of vessels that are currently issued, or eligible to renew, swordfish directed and incidental permits. At most, approximately 40 permits could be reissued as a result of this rule but all of these permits have been issued before, since LAPs were first implemented in 1999. In a future rulemaking, the Agency may consider alternatives to address latent fishing effort. *Comment 11:* I support the preferred alternative which would remove the one year renewal timeframe on Atlantic tunas longline LAPs and allow the agency to reissue this permit to the most recent permit holder of record. This would allow me to renew my permit and make my incidental swordfish permit valid again. It provides an opportunity for me to retain the incidental swordfish possession limit that may be caught while fishing for *Illex* squid. This is a significant benefit to my business and it will not have a negative impact on the swordfish stock. There are between 50 - 70 LAPs issued for *Illex* squid, and about 20 active *Illex* squid vessels. Four to five of these vessel owners would seek to renew their expired Atlantic tunas longline LAP. *Response:* NMFS recognizes that some *Illex* squid trawl vessel owners indicated that they misunderstood the requirement which specifies that, in order to retain incidentally-caught swordfish, it is necessary to be issued an Atlantic tunas longline LAP, a shark LAP, and a swordfish LAP (other than handgear). This final rule will allow some squid trawl vessel owners to renew their expired Atlantic tunas longline LAP, thereby allowing them to retain incidentally-caught swordfish, reduce or eliminate regulatory swordfish discards, and obtain economic benefits. *Comment 12:* NMFS should consider allowing squid trawlers to obtain an incidental swordfish LAP without requiring them to also obtain a corresponding Atlantic tunas longline LAP and a shark LAP. These vessels fish in approximately 150 - 200 fathoms on the edge of the continental shelf and rarely, if ever, catch tunas or sharks. They do not direct fishing effort on swordfish because it is unfeasible. This modification would allow only for the retention of incidentally-caught swordfish. *Response:* This comment is beyond the scope of this rulemaking, however NMFS may consider the recommendation in a future rulemaking. *Comment 13:* I am concerned about the language which requires that the swordfish and shark LAPs must have “been maintained through timely renewal” in order to be eligible for a reissued Atlantic tunas longline LAP. My vessel lost its Atlantic tunas longline LAP because of non-renewal. I then transferred its swordfish and shark permits to another vessel. If the swordfish and shark permits are transferred back to the original vessel (the one that lost its tuna permit), will that vessel still be eligible for a reissued Atlantic tunas longline LAP as a result of this rule? *Response:* To clarify, upon receipt of a complete permit renewal application, NMFS will reissue Atlantic tunas longline LAPs that have been expired for more than one year to the most recent permit holder of record, but only if the vessel has also been issued both a shark LAP and a swordfish LAP (other than handgear), and all other requirements for permit renewal are met. Because the shark and swordfish LAPs must already be issued, those permits would have been maintained through timely renewal. In the situation described in this comment, the vessel would be eligible for a newly reissued Atlantic tunas longline LAP if it was previously issued the tuna permit, and was currently issued both swordfish and shark LAPs, regardless of whether those swordfish and shark LAPs were transferred from another vessel. *Comment 14:* NMFS should require that permit recipients have a boat as a qualification criterion before reissuing a new Atlantic tunas longline LAP. If a fisherman invests in building or buying a boat, it demonstrates their commitment to the fishery and they should be reissued the permit. This requirement would also prevent permits from being sold from one area to another area. *Response:* Under this final rule, the eligibility to be issued an Atlantic tunas longline LAP will not be dependent upon possessing a vessel. The most recent permit holder of record for an Atlantic tunas longline LAP will be eligible to renew that permit with no “sunset” date. However, the permit cannot actually be reissued until the most recent permit holder of record possesses a vessel for which the permit can be issued. NMFS believes that the establishment of more restrictive qualification criteria, such as owning a vessel to become eligible for a newly reissued permit, would run counter to the intent of this rulemaking which is to ensure that the available number of Atlantic tunas longline LAPs is sufficient to match the number of available swordfish and shark LAPs. *Comment 15:* NMFS should not require that newly reissued permits be linked to a vessel. Vessels can sink or be taken out of service for many reasons. Therefore, people need to have the flexibility to keep their permits separate from vessels so that the permit can be used later. Some people might not be able to get back into the fishery because they are sick or incapacitated. However, they should be allowed to keep their permit in “no vessel” status and to sell it later so that it can actually be used to fish. *Response:* As described above in the response to Comment 14, it is necessary for a person to possess a vessel in order to be issued, or reissued, an Atlantic tunas longline LAP. This is a function of the permit renewal system. However, the eligibility to be issued an Atlantic tunas longline LAP will not be dependent upon possessing a vessel. Therefore, if a person was previously issued an Atlantic tunas longline LAP and they remain the most recent permit holder of record, they would be eligible to renew the permit with no “sunset” date, but the permit could not actually be issued until there is a vessel to which the permit may be issued. They would not lose their eligibility to renew their permit if they do not have a vessel, or if they become sick or incapacitated. *Comment 16:* I oppose the proposed rule. The proposed regulations will allow people who didn't follow the law regarding permit renewals to obtain an Atlantic tunas longline LAP. Some fishermen paid a lot of money to buy that permit. The proposed rule would allow people who are reissued the permit to obtain an economic benefit. Why is NMFS rewarding these 40 individuals? This rule makes a difference to people who had to buy a permit for a lot of money. The 40 affected individuals have not been fishing. They parked their permit, and now they will be able to renew it. NMFS should be more forthright about why it is allowing these people to renew their permit if it has been expired for more than one year. *Response:* NMFS is implementing this final rule primarily to ensure that an adequate number of Atlantic tunas longline LAPs are available to match the available number of swordfish and shark LAPs because all three permits are needed to retain swordfish (other than with the swordfish handgear LAP) and to fish for tunas with PLL gear. This rule is also being implemented so that the HMS regulations better reflect the operational constraints associated with the Atlantic tunas longline permit issuance system. For example, because the tuna permit issuance system lacks a “no vessel” status, some people without a vessel were unable to renew their Atlantic tunas longline LAP within one year and they lost their eligibility for the permit. Also, some squid trawl vessel owners issued incidental swordfish permits indicated that they misunderstood the requirement, which specifies that they must also be issued an Atlantic tunas longline LAP and a shark LAP in order to retain swordfish. These vessel owners inadvertently failed to renew their tuna permit within one year of expiration, lost their eligibility, and have since had to discard incidentally-caught swordfish. NMFS is aware that this rule could potentially provide an economic benefit to former permit holders who are reissued the permit. However, all of the individuals affected by this rule originally qualified for the permit, or obtained it through transfer. NMFS will not be issuing new permits to everyone who submits an application. The Atlantic tunas longline permit remains a limited access permit. Unless a person is the most recent Atlantic tunas longline permit holder of record, the permit can still only be obtained through transfer. *Comment 17:* I oppose the proposed rule. It would reward individuals that have not helped the swordfish fishery at all. Their permits are being carried solely as an investment. Anyone who owns a permit knows that people are looking to buy permits. This proposed rule offers an opportunity for these individuals to sell their newly reissued permits. Many former permit holders will sell the Atlantic tunas longline LAP for economic benefit to south Florida vessel owners that want to fish with buoy gear. *Response:* The final rule will allow former Atlantic tunas longline permit holders to renew this permit if it has been expired for more than one year. They will then become legally eligible to retain swordfish, provided that they have also been issued a shark and swordfish LAP (other than handgear) and are compliant with all other regulations. Because these former permit holders were previously not allowed to renew their expired Atlantic tunas longline LAPs, they were not able to retain swordfish or “help” the swordfish fishery. It is unlikely that these former permit holders allowed their Atlantic tunas longline permit to expire for more than one year if they were holding onto it for investment purposes, as the permits would no longer be renewable. Many former permit holders have indicated that they misunderstood the requirement which specifies that an Atlantic tunas longline LAP is necessary to retain swordfish (except with a swordfish handgear LAP), or that they were not able to be issued a tunas longline LAP because they did not possess a vessel, or were confused by the permit renewal procedures. Under this final rule, if a person whose Atlantic tunas longline LAP has been expired for more than one year possesses a vessel, applies for the permit, has been issued both swordfish and shark LAPs (other than swordfish handgear), and meets all other permit renewal requirements, they will be reissued a new permit. The permit could then be used to fish, or it could be sold and transferred. Transferability is an important feature of all HMS LAPs. If some of the newly reissued permits are transferred to people who are then able to fish for swordfish as a result of this final rule, it would be beneficial to the United States for achieving the domestic swordfish quota. It is possible that some transferred permits could be used to participate in the buoy gear fishery in south Florida. The buoy gear fishery is currently authorized and managed under the Consolidated HMS Fishery Management Plan (Consolidated HMS FMP). NMFS monitors, and will continue to monitor, the buoy gear fishery to determine if changes to the regulations governing this fishery are warranted. *Comment 18:* The United States will not catch its swordfish quota if the newly reissued permits are not actually used to catch fish. The final rule should contain a “sunset clause” which specifies that if a newly reissued permit is not used to fish by a certain date, then it would be revoked. The United States needs to put boats on the water. Therefore, the recipients must either use the permit or lose the permit. *Response:* NMFS is not imposing any additional restrictions, such as a “use or lose” date, upon newly reissued Atlantic tunas longline LAPs. The establishment of restrictive criteria to retain the permit, or to retain eligibility for the permit, would run counter to the intent of this rulemaking, which is primarily to ensure that the number of available Atlantic tunas longline LAPs is sufficient to match the number of available swordfish and shark LAPs. There are many instances when a person may not be able to fish. Requiring a person to fish with a newly reissued permit within a certain period of time, or else risk losing the permit, could compromise their safety at sea and would limit their business's planning and decision-making flexibility. As stated in the responses to comments 9 and 10, the Agency may consider alternatives to address latent fishing effort in a future rulemaking. *Comment 19:* NMFS should not allow any newly reissued permits to be sold or transferred. *Response:* NMFS believes that the regulations governing the sale and transfer of all HMS LAPs should be consistent for administrative purposes and to minimize confusion, especially because swordfish, shark, and Atlantic tunas longline LAPs are often transferred together as a three-permit package. It would be confusing for the public and difficult for NMFS to administer if only certain Atlantic tunas longline LAPs were transferrable, while others were not. Furthermore, permit transferability is an important feature of HMS LAPs because it allows permit buyers and sellers to determine how permits are utilized, rather than the federal government. Finally, the establishment of restrictive criteria applying only to the transfer of certain Atlantic tunas longline LAPs would run counter to the intent of this rulemaking, which is primarily to ensure that the number of available Atlantic tunas longline LAPs is sufficient to match the number of available swordfish and shark LAPs. *Comment 20:* NMFS should create a “pool” of unused or revoked permits that could be issued to people who want to fish. There needs to be more HMS permits available so that people who want to buy a boat and fish can more easily obtain a permit. *Response:* NMFS does not currently intend to revoke latent HMS LAPs, or to serve as a broker for revoked or latent permits. As discussed in the response to Comment 5, there are currently a large number of latent or inactive permits in the HMS PLL fishery. All of these permits are transferrable, so NMFS encourages anyone interested in participating in an HMS limited access fishery to make the appropriate contacts and obtain the needed permits. *Comment 21:* NMFS should allow for the leasing and chartering of HMS permits to foreign vessels. This would allow the newly reissued Atlantic tunas longline LAPs permits to be used for fishing on the high seas. *Response:* This comment is beyond the scope of this rulemaking, however NMFS may consider the recommendation in a future rulemaking. *Comment 22:* I support the proposed action, but it should only be considered a first step. Is this the entire extent of the permit revisions that NMFS is considering? NMFS should allow all lapsed swordfish, shark, and tuna permits to be reinstated. The United States needs more boats on the water catching fish. Many people lost their permits either through attrition, or because they were confused by the renewal process. NMFS should address the entire issue by reissuing all expired shark and swordfish permits. Does NMFS plan to reinstate other lapsed HMS permits? *Response:* NMFS does not presently intend to reinstate other lapsed HMS permits. This final rule only affects lapsed Atlantic tunas longline LAPs because the situation regarding these permits is unique. The operational constraints of the online renewal system for this permit prevented some otherwise qualified permit holders from renewing their permit because they did not own a vessel. Also, several squid trawl vessel owners indicated that they misunderstood they needed an Atlantic tunas longline LAP and a shark LAP to retain incidentally-caught swordfish, even though they were issued an incidental swordfish permit. Finally, the renewal reminder and permit application process for Atlantic tunas longline LAPs is different from other HMS LAPs. NMFS recognizes these differences and realizes that some former permit holders may not have been able to renew their permit, or were confused by the regulations or renewal process. This final rule provides an immediate remedy to these readily identifiable problems. NMFS may also consider other, more comprehensive, permit-related issues in a future rulemaking. *Comment 23:* I oppose the proposed action. There are already enough HMS permits available now. *Response:* There are many latent HMS permits, including approximately 131 complete three-permit PLL “packages.” However, some people are issued only one or two of the three required permits needed to retain swordfish (other than with handgear), or to fish for tunas with PLL gear. If these people were to complete their three-permit package by obtaining an Atlantic tunas longline LAP through transfer, the transferor could then have an incomplete permit package. This is the permit imbalance that NMFS is seeking to address. This final rule is less focused on reissuing more Atlantic tunas longline LAPs, and more focused on ensuring that currently issued swordfish permits are valid (because they are held in conjunction with the other two permits). It will help to slow the rate of attrition in the PLL fishery without increasing the number of PLL vessels above the number of permit holders issued swordfish LAPs. Shark Dealer Workshops *Comment 24:* Are shark dealer permits issued to individuals or to entities? *Response:* Shark dealer permits may be issued to both individuals and corporate entities. *Comment 25:* Does the final rule change the HMS regulations at § 635.28(b)(3) which state that, when the fishery for a shark species group in a particular region is closed, shark dealers in that region may not purchase or receive sharks of that species group from a vessel issued an Atlantic shark LAP? *Response:* No. This final rule primarily modifies Atlantic Shark Identification Workshop requirements at § 635.8(b) for Atlantic shark dealers that have more than one place of business listed on their shark dealer permit. Also, this final rule implements a requirement which specifies that trucks or other conveyances of a dealer's place of business must possess a copy of a valid Atlantic Shark Identification Workshop certificate (dealer or proxy) issued to a place of business covered by the dealer permit. *Comment 26:* The Atlantic Shark Identification Workshops use shark “logs” and the second dorsal and anal fins to identify sharks. NMFS should allow the workshop instructor to have access to prohibited species, different life history stages, and different product forms to further improve dealer identification skills. *Response:* NMFS will examine the feasibility and necessity of providing these items at future workshops. Changes from the Proposed Rule There are no changes from the proposed rule. Classification The Assistant Administrator, NMFS, has determined that this final rule is necessary for the conservation and management of the HMS fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. A Final Regulatory Flexibility Analysis
(FRFA)was prepared. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses. The full FRFA is available from NMFS (see ADDRESSES ). A summary of the information presented in the FRFA follows. Section 604(a)(1) of the Regulatory Flexibility Act
(RFA)requires the Agency to state the objective and need for the rule. As stated in the proposed rule, the objective of this final rule regarding the renewal of expired Atlantic tunas longline LAPs is to help ensure that an adequate number of complementary Atlantic tunas longline LAPs are available for swordfish and shark LAP holders to fish legally for Atlantic swordfish and tunas with PLL gear. Consistent with the Magnuson-Stevens Act and ATCA, this action is also intended to help provide a reasonable opportunity for U.S. vessels to harvest quota allocations recommended by ICCAT, in recognition of the improved stock status of North Atlantic swordfish (B = 0.99Bmsy). The amendment regarding attendance requirements at Atlantic Shark Identification Workshops is necessary because some shark dealers do not receive shark products at all of the locations listed on their permit, thus making it unnecessary to require workshop certification for those locations where sharks are not received. For technical and administrative reasons, it is not currently feasible for NMFS to list only locations on the shark dealer permit where sharks are first received, if a dealer also has other locations where other species are received. This final rule requires dealers to submit an Atlantic Shark Identification Workshop certificate (dealer or proxy) for each place of business listed on the shark dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade, rather than from each location listed on their dealer permit. This will eliminate the need for a dealer to send a proxy to a workshop to obtain a certificate for a business location that does not first receive Atlantic shark products for the sole purpose of renewing their Atlantic shark dealer permit. The requirement to possess, and make available for inspection, an Atlantic Shark Identification Workshop certificate is similarly only required at locations listed on the dealer permit where sharks are first received. Additionally, this final rule requires that extensions of a dealer's business, such as trucks or other conveyances, must possess a copy of a valid dealer or proxy certificate issued to a place of business covered by the dealer permit. This will allow trucks or other conveyances of a NMFS-certified place of business to be immediately identified as being eligible to first receive Atlantic sharks. Section 604(a)(2) of the RFA requires the Agency to summarize significant issues raised by the public comments in response to the IRFA, summarize the assessment of the Agency of such issues, and state any changes made in the rule as a result of such comments. NMFS received several comments on the proposed rule during the public comment period. A summary of the comments and the Agency's responses are included in the preamble of this final rule. NMFS did not receive any comments specific to the IRFA, but did receive a limited number of comments related to economic issues and concerns. These comments are responded to with the other comments (see Comments 11, 16, and 17). The comments on economic concerns are also summarized here. A comment was received indicating that the preferred alternative for the renewal of Atlantic tunas longline LAPs would allow some *Illex* squid trawlers to renew their Atlantic tunas longline permit again, thus making their incidental swordfish permit valid. This would allow them to retain incidentally-caught swordfish and provide a significant economic benefit to their business. NMFS concurs with this assessment that the final action could provide an economic benefit to some former permit holders, and reduce or eliminate swordfish regulatory discards by allowing squid trawlers to retain incidentally-caught swordfish. Another commenter stated that the preferred alternative would allow people who did not follow the regulations regarding permit renewal to obtain a new Atlantic tunas longline LAP, whereas some fishermen had to pay for the permit. In response, NMFS stated that the intent of the final rule is to help ensure that the number of available Atlantic tunas longline LAPs is sufficient to match the number of available swordfish and shark LAPs. Furthermore, all of the individuals affected by this rule either originally qualified for an Atlantic tunas longline LAP, or obtained it through transfer. NMFS will not be issuing new permits to everyone who submits an application. The Atlantic tunas longline permit remains a limited access permit. Unless a person is the most recent Atlantic tunas longline permit holder of record, the permit can only be obtained through transfer. Finally, NMFS received a comment stating that the preferred alternative provides an opportunity for individuals to sell their newly reissued Atlantic tunas longline LAP for their own economic benefit, possibly to south Florida vessel owners that want to fish with buoy gear. In response, NMFS believes it would be beneficial for achieving the domestic north Atlantic swordfish quota if some people who want to fish for swordfish are able to do so legally. Some of the transferred permits could be used to participate in the buoy gear fishery in south Florida. NMFS will continue to monitor the buoy gear fishery to determine if additional regulations are needed. No changes to the final rule were made as a result of these comments. Section 604(a)(3) of the RFA requires the Agency to describe and estimate the number of small entities to which the final rule will apply. NMFS considers all commercial permit holders to be small entities as reflected in the Small Business Administration's
(SBA)size standards for defining a small business entity (gross receipts less than $4.0 million). The final action to modify permit renewal requirements for Atlantic tunas longline LAPs would most immediately impact approximately 40 vessel owners that are the most recent permit holders of record, but are not eligible to renew that permit because it has been expired for more than one year. Potentially, 245 vessel owners that are concurrently issued Atlantic tunas longline, swordfish, and shark LAPs could be affected by this action if, in the future, they fail to renew their Atlantic tunas longline LAP within one year of expiration. Based upon information obtained from the Southeast Regional Office permits shop, as of May 19, 2008, NMFS had issued 142 Atlantic shark dealer permits (not counting Atlantic shark dealers located in Pacific states (5 in CA, and 2 in HI)). Of these, 41 individual dealers had multiple locations (ranging from two to eight locations) listed on their permit. Eighty-four of these shark dealers had been issued a workshop certificate for at least one location, and 58 shark dealers had not been issued any workshop certificates for any locations. Approximately 8 of the 41 dealers with multiple locations had been issued at least one certificate, but not certificates for all of the locations listed on their permit. Thus, under the current regulations, these 8 dealers would not be eligible to renew their shark dealer permit. The 8 Atlantic shark dealers who have not been issued proxy certificates for all of their locations are most immediately affected by this final rule because, as a result of this rule, they would be eligible to renew their shark dealer permit by submitting workshop certificates only for locations that actually receive shark products. Potentially, any of the 41 Atlantic shark dealers with multiple locations listed on their permit could also be impacted by this action. All of the aforementioned businesses are considered small business entities according to the Small Business Administration's standard for defining a small entity. Section 604(a)(4) of the RFA requires NMFS to describe the projected reporting, recordkeeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities that will be subject to the requirements of the report or record. This final rule does not contain any new reporting, recordkeeping, or other compliance requirements that will require new Paperwork Reduction Act filings. Atlantic shark dealers will need to comply with a new requirement to possess a copy of their Atlantic Shark Identification Workshop certificate (dealer or proxy) in their trucks or other conveyances which serve as extensions of a dealer's place of business. This will help to facilitate the identification of trucks or other conveyances as extensions of a NMFS-certified place of business which is eligible to receive Atlantic sharks. Section 604(a)(5) of the RFA requires the Agency to describe the steps taken to minimize the significant economic impact on small entities consistent with the stated objectives of the applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected. Additionally, the RFA (5 U.S.C. 603(c)(1) through (4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are: 1. Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; 2. Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; 3. Use of performance rather than design standards; and 4. Exemptions from coverage of the rule for small entities. As noted earlier, NMFS considers all commercial permit holders to be small entities. In order to meet the objectives of this final rule, consistent with the Magnuson-Stevens Act, ATCA, and the ESA, NMFS cannot exempt small entities or change the compliance requirements only for small entities. Thus, there are no alternatives that fall under the first and fourth categories described above. With regards to category two, none of the alternatives considered would result in additional reporting requirements. The selected alternative for Atlantic Shark Identification Workshops requires shark dealers to possess a copy of their workshop certificate (dealer or proxy) in trucks or other conveyances which serve as extensions of a dealers' place of business. The only compliance requirement involves making a photocopy of the workshop certificate, and possessing that copy inside dealer's trucks or conveyances. This requirement will facilitate the identification of vehicles which serve as extensions of a NMFS-certified place of business that is eligible to receive Atlantic sharks. Category three emphasizes the use of performance standards rather than design standards in the development of alternatives. None of the alternatives require compliance with standards, so there are no alternatives that fall under this category. NMFS considered two alternatives to address the renewal of Atlantic tunas longline LAPs that have been expired for more than one year, and two alternatives to address Atlantic Shark Identification Workshop attendance requirements. As described below, NMFS has provided justification for the selection of the preferred alternatives to achieve the desired objectives of this rulemaking. Alternative 1 for the renewal of Atlantic tunas longline LAPs (alternative 2.1.1 in the FRFA) is the no action, or status quo, alternative. Current HMS regulations at 50 CFR 635.4(m)(2) specify that only persons holding a non-expired Atlantic tunas longline LAP in the preceding year are eligible to renew that permit. Under alternative 1, there would be no change in the existing regulations and, as such, no change in the current baseline economic impacts. However, the situation regarding the renewal of Atlantic tunas longline LAPs is unique. Until September 2007, the procedures for renewing Atlantic tunas longline LAPs were implemented differently than for swordfish and shark LAPs. Since September 2007, the permit renewal regulations have been administered similarly. Thus, the no action alternative would continue any existing economic impacts, but those impacts have only been in existence since September 2007. The no action alternative was not selected because it has the largest associated adverse economic impacts. Without an Atlantic tunas longline LAP, a permit holder is prohibited from fishing for tunas with PLL gear and from retaining swordfish, even if the vessel has been issued a directed or incidental swordfish permit. As many as 40 commercial fishing vessels that previously qualified for LAPs to participate in the PLL fishery would continue to be prohibited from participating in the fishery, harvesting the U.S. swordfish quota, and creating jobs. Thus a failure to take action would prevent the realization of economic gains associated with increased swordfish fishing. Under the selected alternative (preferred alternative 2.1.2 in the FRFA), NMFS would remove the one-year renewal timeframe for Atlantic tunas longline LAPs. This would allow the Agency to reissue the permit to the most recent permit holder of record, even if the Atlantic tunas longline LAP had not been renewed within one year of expiration, provided that they were issued swordfish and shark LAPs and all other requirements for permit renewal were met. The requirement to possess swordfish and shark LAPs in order to obtain an Atlantic tunas longline LAP would remain in effect. Also, current regulations which specify that only persons holding non-expired swordfish and shark LAPs in the preceding year are eligible to renew those permits would remain in effect. Relative to the no action alternative, removing the one-year renewal timeframe for Atlantic tunas longline LAPs is projected to potentially increase net and gross revenues for approximately 40 vessel owners who are otherwise qualified to fish for swordfish and tunas with PLL gear, except that they are currently ineligible to renew their Atlantic tunas longline LAP. Overall fleet-wide gross economic benefits could potentially increase as much as $7,842,280 under this alternative, relative to the baseline. Also, an overall fleet-wide increase in net revenues (profits) of approximately $200,000 to $721,839 could occur, distributed among the 40 vessels potentially impacted by this alternative. Under this alternative, each individual vessel owner could see an increase in annual net revenues ranging from $0 to potentially over $100,000, depending upon the profitability of their business. Another important benefit associated with the selected alternative is that it could help to maintain the domestic swordfish and tuna PLL fishery at historical levels by allowing 35 - 40 vessels to participate in the fishery that, since September 2007, have not been permitted to do so. All of the potentially affected vessels/permit holders originally qualified for the longline fishery in 1999, or received the necessary permits through transfer. Thus, relative to August 2007 and years prior, there would be no change in historical fishing practices, fishing effort, or economic impact. However, relative to September 2007 and beyond, potential economic benefits to the affected permit holders would result. The selected alternative could also help the United States retain its historic swordfish quota allocation at ICCAT and sustain employment opportunities in the domestic PLL fleet. Maintaining a viable domestic PLL fishery is important because it could help to demonstrate that a well-managed, environmentally-sound fishery can also be profitable. This could eventually provide an incentive for other nations to adopt similar management measures that are currently required of the U.S. PLL fleet such as circle hooks, careful release gears, and other measures described in the response to Comment 1 above. A related potential impact associated with both alternatives is that changes to the value of an Atlantic tunas longline LAP could occur by changing the supply of available permits. The no action alternative would likely reduce the supply of available permits over time, thereby increasing the value of the permit. The selected alternative could initially increase the supply relative to the period since September 2007, and thereby reduce the value. These impacts would be either positive or negative for small business entities, depending upon whether the Atlantic tunas longline LAP was being bought or sold. There are no other significant alternatives for the renewal of Atlantic tunas longline permits, except for the two aforementioned alternatives. The selected alternative achieves the objectives of this rulemaking, provides benefits to small entities, and has few associated impacts because the regulatory changes will be more representative of the actual operational capabilities of the Atlantic tunas longline LAP renewal system. The selected alternative will help to ensure that an adequate number of Atlantic tunas longline LAPs are available to match the available number of swordfish and shark LAPs, which is important because all three permits are needed to retain swordfish (other than with the swordfish handgear LAP) and to fish for tunas with PLL gear. Alternative 1 for attendance requirements at Atlantic Shark Identification Workshops (alternative 2.2.1 in the FRFA) is the no action alternative. All dealers intending to renew their Atlantic shark dealer permit would continue to be required to become certified at an Atlantic Shark Identification Workshop, or to have their proxies certified. Dealers with multiple locations listed on their permit would receive certificates for each location listed on their permit. Dealers opting not to become certified and to send a proxy would continue to be required to send a proxy for each location listed on their Atlantic shark dealer permit. Atlantic shark dealers would not be allowed to renew their permit without submitting either a dealer or proxy certificate for each location listed on their Atlantic shark dealer permit. Additionally, Atlantic shark dealers could not receive shark products at a location that does not have a valid workshop certificate for that address on the premises. There are approximately 41 Atlantic shark dealers with more than one location listed on their permit. These dealers have the choice of becoming certified themselves, or sending a proxy to the workshops for each location listed on a permit. As described in the Consolidated HMS FMP and its final rule (71 FR 58058, October 2, 2006), on an individual basis the costs incurred by dealers and/or proxies are those related to travel and the time required to attend the workshops, which result in out of pocket expenses and lost opportunity costs. Travel costs to attend these workshops vary, depending upon the distance that must be traveled. Daily opportunity costs for dealers are not currently known. Therefore, it is not possible to precisely quantify the costs associated with the no action alternative. At a minimum, the costs for a dealer attending a workshop include travel expenses and at least one day of lost opportunity costs. At a maximum, for dealers opting to send proxies for each location listed on their permit, the costs could include travel expenses for several proxies and several days of lost opportunity costs. The selected alternative for Atlantic Shark Identification Workshop attendance requirements (preferred alternative 2.2.2 in the FRFA) specifies that, upon permit renewal, a dealer must submit an Atlantic Shark Identification Workshop certificate (dealer or proxy) for each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade, rather than from each location listed on their dealer permit. The requirement to possess, and make available for inspection, an Atlantic Shark Identification Workshop certificate is similarly only required at locations listed on the dealer permit where sharks are first received. This eliminates the need for a dealer to send a proxy to a workshop to obtain a certificate for a business location that does not first receive Atlantic shark products. As mentioned above, there are currently 41 shark dealers with multiple locations listed on their permit which could be impacted by the proposed action. Of these, 8 Atlantic shark dealers have not currently been issued Atlantic Shark Identification Workshop certificates for all of the locations listed on their permit. NMFS estimates that the total costs (travel costs and opportunity costs) associated with the selected alternative for Atlantic Shark Identification Workshop attendance requirements will be lower than those associated with the no action alternative, but only for Atlantic shark dealers that:
(1)opt to send a proxy (or proxies) to the workshop;
(2)have multiple locations listed on their permit; and,
(3)only first receive shark products at some of the locations listed on their Atlantic shark dealer permit. Costs will remain unchanged for shark dealers that do not meet these three criteria. For dealers that meet these criteria, the costs will be reduced by an amount equivalent to sending proxies for each location listed on the permit that do not first receive shark products. For example, if a dealer chooses to send proxies and has four locations listed on the permit, but only two of those locations first receive shark products, the costs would be reduced by the amount equivalent to sending two proxies to an Atlantic Shark Identification Workshop. The selected alternative also requires that extensions of a dealer's business, such as trucks or other conveyances, must possess a copy of a valid dealer or proxy certificate issued to a place of business covered by the dealer permit. This requirement allows trucks or other conveyances to be immediately identified as extensions of a NMFS-certified place of business which is eligible to receive Atlantic sharks. NMFS anticipates that this requirement will have minimal costs but will improve the enforceability of existing Atlantic shark regulations. There are no other significant alternatives for Atlantic Shark Identification Workshop attendance requirements except for these two alternatives. Administratively it is not currently feasible, for both technical and programmatic reasons, to modify the NMFS permits database to accommodate dealers having different locations where they receive different species. The selected alternative requires dealers to display an Atlantic Shark Identification Workshop certificate at all locations where sharks are first received. Therefore, it achieves the objective of improving the identification and reporting of shark species, while simultaneously lessening impacts on dealers. The selected alternative will also improve the enforceability of existing Atlantic shark regulations by requiring extensions of a dealer's business, such as trucks or other conveyances, to possess a copy of a valid dealer or proxy certificate issued to a place of business covered by the dealer permit. List of Subjects in 50 CFR Part 635 Fisheries, Fishing, Fishing vessels, Management, Penalties, Reporting and recordkeeping requirements. Dated: June 27, 2008. John Oliver Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For reasons set out in the preamble, 50 CFR part 635 is amended as follows: PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority: 16 U.S.C. 971 *et seq.* ; 16 U.S.C. 1801 *et seq.* 2. In § 635.4, paragraph (m)(2) is revised to read as follows: § 635.4 Permits and fees.
(m)* * *
(2)*Shark and swordfish LAPs.* The owner of a vessel of the U.S. that fishes for, possesses, lands or sells shark or swordfish from the management unit, or that takes or possesses such shark or swordfish as incidental catch, must have the applicable limited access permit(s) issued pursuant to the requirements in paragraphs
(e)and
(f)of this section. Only persons holding non-expired shark and swordfish limited access permit(s) in the preceding year are eligible to renew those limited access permit(s). Transferors may not renew limited access permits that have been transferred according to the procedures in paragraph
(l)of this section. 3. In § 635.8, paragraphs (b)(4), (b)(5), and (c)(4) are revised to read as follows: § 635.8 Workshops.
(b)* * *
(4)Dealers may send a proxy to the Atlantic shark identification workshops. If a dealer opts to send a proxy, the dealer must designate at least one proxy from each place of business listed on the dealer permit, issued pursuant to § 635.4(g)(2), which first receives Atlantic shark by way of purchase, barter, or trade. The proxy must be a person who is currently employed by a place of business covered by the dealer's permit; is a primary participant in the identification, weighing, and/or first receipt of fish as they are offloaded from a vessel; and fills out dealer reports as required under § 635.5. Only one certificate will be issued to each proxy. If a proxy is no longer employed by a place of business covered by the dealer's permit, the dealer or another proxy must be certified as having completed a workshop pursuant to this section. At least one individual from each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade must possess a valid Atlantic shark identification workshop certificate.
(5)A Federal Atlantic shark dealer issued or required to be issued a shark dealer permit pursuant to § 635.4(g)(2) must possess and make available for inspection a valid Atlantic shark identification workshop certificate at each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade. For the purposes of this part, trucks or other conveyances of a dealer's place of business are considered to be extensions of a dealer's place of business and must possess a copy of a valid dealer or proxy certificate issued to a place of business covered by the dealer permit. A copy of this certificate issued to the dealer or proxy must be included in the dealer's application package to obtain or renew a shark dealer permit. If multiple businesses are authorized to receive Atlantic sharks under the dealer's permit, a copy of the workshop certificate for each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade must be included in the shark dealer permit renewal application package.
(c)* * *
(4)An Atlantic shark dealer may not first receive, purchase, trade, or barter for Atlantic shark without a valid Atlantic shark identification workshop certificate. A valid Atlantic shark identification workshop certificate must be maintained on the premises of each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade. An Atlantic shark dealer may not renew a Federal dealer permit issued pursuant to § 635.4(g)(2) unless a valid Atlantic shark identification workshop certificate has been submitted with the permit renewal application. If the dealer is not certified, the dealer must submit a copy of a proxy certificate for each place of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade. 4. In § 635.21, paragraph (e)(4)(iii) is revised to read as follows: § 635.21 Gear operation and deployment restrictions.
(e)* * *
(4)* * *
(iii)A person aboard a vessel issued or required to be issued a valid directed handgear LAP for Atlantic swordfish may not fish for swordfish with any gear other than handgear. A swordfish will be deemed to have been harvested by longline when the fish is on board or offloaded from a vessel using or having on board longline gear. Only vessels that have been issued, or that are required to have been issued, a valid directed or handgear swordfish LAP under this part may utilize or possess buoy gear. Vessels utilizing buoy gear may not possess or deploy more than 35 floatation devices, and may not deploy more than 35 individual buoy gears per vessel. Buoy gear must be constructed and deployed so that the hooks and/or gangions are attached to the vertical portion of the mainline. Floatation devices may be attached to one but not both ends of the mainline, and no hooks or gangions may be attached to any floatation device or horizontal portion of the mainline. If more than one floatation device is attached to a buoy gear, no hook or gangion may be attached to the mainline between them. Individual buoy gears may not be linked, clipped, or connected together in any way. Buoy gears must be released and retrieved by hand. All deployed buoy gear must have some type of monitoring equipment affixed to it including, but not limited to, radar reflectors, beeper devices, lights, or reflective tape. If only reflective tape is affixed, the vessel deploying the buoy gear must possess on board an operable spotlight capable of illuminating deployed floatation devices. If a gear monitoring device is positively buoyant, and rigged to be attached to a fishing gear, it is included in the 35 floatation device vessel limit and must be marked appropriately. 5. In § 635.71, paragraph (d)(14) is revised to read as follows: § 635.71 Prohibitions.
(d)* * *
(14)Receive, purchase, trade, or barter for Atlantic shark without making available for inspection, at each of the dealer's places of business listed on the dealer permit which first receives Atlantic sharks by way of purchase, barter, or trade, a valid Atlantic shark identification workshop certificate issued by NMFS in violation of § 635.8(b), except that trucks or other conveyances of the business must possess a copy of such certificate. [FR Doc. E8-15195 Filed 7-2-08; 8:45 am] BILLING CODE 3510-22-S 73 129 Thursday, July 3, 2008 Proposed Rules DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 253 [FNS-2007-0042] RIN 0584-AD12 Food Distribution Program on Indian Reservations: Resource Limits and Exclusions, and Extended Certification Periods AGENCY: Food and Nutrition Service, USDA. ACTION: Proposed rule. SUMMARY: This proposed rule would amend regulations for the Food Distribution Program on Indian Reservations (FDPIR). The changes are intended to improve program service, ensure consistency between FDPIR and the Food Stamp Program, and respond to concerns expressed by the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR) that the current FDPIR resource limit was insufficient for the target population and served as a barrier to participation. The proposed rule would increase the maximum level of allowable resources to the same level permitted under the Food Stamp Program (including annual adjustments for inflation in accordance with Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234)), allow a resource exclusion for the first $1,500 of the value of one pre-paid funeral arrangement per household member, and allow households in which all members are elderly and/or disabled to be certified for up to 24 months. The rule would also implement Section 4107 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), which established a resource limit of $3,000 for Food Stamp Program households with a disabled member. DATES: To be assured of consideration, comments must be received on or before September 2, 2008. ADDRESSES: The Food and Nutrition Service
(FNS)invites interested persons to submit comments on this proposed rule. You may submit comments identified by Regulatory Identifier Number
(RIN)0584-AD12, by any of the following methods: • Fax: Submit comments by facsimile transmission to
(703)305-2420. • Disk or CD-ROM: Submit comments on disk to Lillie F. Ragan, Assistant Branch Chief, Policy Branch, Food Distribution Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 506, Alexandria, Virginia 22302-1594. • Mail: Send comments to Lillie F. Ragan at the above address. • Hand Delivery or Courier: Deliver comments to the above address. • Federal eRulemaking Portal: Go to *http://www.regulations.gov,* select “Food and Nutrition Service” from the agency drop-down menu, and click “Submit.” In the Docket ID column of the search results select “FNS-2007-0042” to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. Comments submitted in response to this rule will be included in the record and will be made available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. The Department will make the comments publicly available on the Internet via *http://www.regulations.gov. * All written submissions will be available for public inspection at the address above during regular business hours (8:30 a.m. to 5:30 p.m.), Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lillie F. Ragan at the above address, or telephone
(703)305-2662. SUPPLEMENTARY INFORMATION: I. Public Comment Procedures II. Procedural Matters III. Background and Discussion of the Proposed Rule I. Public Comment Procedures Your written comments on this proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain the reason(s) for any change you recommend or proposal(s) you oppose. Where possible, you should reference the specific section or paragraph of the proposal you are addressing. Comments received after the close of the comment period (see DATES ) will not be considered or included in the Administrative Record for the final rule. Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these regulations easier to understand, including answers to questions such as the following:
(1)Are the requirements in the rule clearly stated?
(2)Does the rule contain technical language or jargon that interferes with its clarity?
(3)Does the format of the rule (e.g., grouping and order of sections, use of headings, and paragraphing) make it clearer or less clear?
(4)Would the rule be easier to understand if it were divided into more (but shorter) sections?
(5)Is the description of the rule in the preamble section entitled “Background and Discussion of the Proposed Rule” helpful in understanding the rule? How could this description be more helpful in making the rule easier to understand? II. Procedural Matters A. Executive Order 12866 This proposed rule has been determined to be significant, and was reviewed by the Office of Management and Budget
(OMB)under Executive Order 12866. B. Regulatory Impact Analysis 1. Need for Action This action is needed to ensure that regulations pertaining to certification period assignments for elderly and/or disabled households and resource standards are consistent between FDPIR and the Food Stamp Program and to reflect provisions contained in the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), which established a resource limit of $3,000 for Food Stamp Program households with a disabled member, and in Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234), which established an annual inflation adjustment to the Food Stamp Program resource limits starting in fiscal year 2009. 2. Benefits This rule would amend FDPIR regulations by aligning several provisions with their counterparts in the Food Stamp Program. These regulatory changes are designed to help ensure that FDPIR benefits are provided to low-income households living on or near Indian reservations that are in need of nutrition assistance. Because FDPIR regulations regarding resource limits and exclusions would be altered by this rule, participation could potentially increase, thus expanding access to those eligible for the program and increasing nutritional benefits to the targeted population. FNS has projected the impact of each proposed change on FDPIR participation. However, we are unable to determine the total number of individuals that might be added as a result of this rule. An individual might benefit from more than one provision and the effect of the overlap could not be determined. 3. Cost This action is not expected to significantly increase costs of State and local agencies, or their commercial contractors, in using donated foods. The combined impact of the proposed changes in this rulemaking is projected to increase program costs by $90,000 in FY 2009 and $473,000 over a five-year period (FY 2009-2013). These increased costs are attributable to potential increases in participation. C. Regulatory Flexibility Act This proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). The Under Secretary for Food, Nutrition and Consumer Services has certified that this action will not have a significant impact on a substantial number of small entities. While program participants and Indian Tribal Organizations
(ITOs)and State agencies that administer the FDPIR and the Food Distribution Program for Indian Households in Oklahoma (FDPIHO) will be affected by this rulemaking, the economic effect will not be significant. D. Public Law 104-4 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, the Department 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, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) that impose on State, local or Tribal governments or the private sector of $100 million or more in any one year. This rule is, therefore, not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 12372 The program addressed in this action is listed in the Catalog of Federal Domestic Assistance under No. 10.567. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V and related Notice published at 48 FR 29114, June 24, 1983, the donation of foods in such programs is included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials. F. Executive Order 13132 Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132. 1. Prior Consultation With Tribal/State Officials The programs affected by the regulatory proposals in this rule are all Tribal or State-administered, federally funded programs. FNS' national headquarters and regional offices have formal and informal discussions with State officials on an ongoing basis regarding program issues relating to the distribution of donated foods. FNS meets annually with the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR), a national group of State agencies, to discuss issues relating to food distribution. 2. Nature of Concerns and the Need To Issue This Rule This rule is intended to provide consistency between FDPIR and the Food Stamp Program in regard to certification period assignments for elderly and/or disabled households and resource standards. The rule was prompted, in part, by a resolution passed by NAFDPIR in fiscal year 2000. NAFDPIR expressed concern that the current FDPIR resource limit was insufficient for the target population and served as a barrier to participation. The rule was also prompted, in part, by a provision contained in the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171), enacted on May 13, 2002. Section 4107 of Public Law 107-171 established a Food Stamp Program resource limit of $3,000 for households with a disabled member. Section 4104 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-234), enacted on May 22, 2008, established an annual inflation factor adjustment to the Food Stamp Program resource limits. This provision is effective October 1, 2008. The other regulatory provisions proposed in this rule are also consistent with Food Stamp Program provisions. 3. Extent to Which We Meet Those Concerns The Department has considered the impact of the proposed rule on State agencies. The Department does not expect the provisions of this rule to conflict with any State or local law, regulations or policies. The overall effect of this rule is to ensure that low-income households living on or near Indian reservations receive nutrition assistance. This rule would ensure consistency between FDPIR and the Food Stamp Program in regard to certification period assignments for elderly and/or disabled households and resource standards. G. Executive Order 12988 This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Although the provisions of this rule are not expected to conflict with any State or local law, regulations, or policies, the rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies that conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect. Prior to any judicial challenge to the provisions of this rule or the application of its provisions all applicable administrative procedures must be exhausted. H. Civil Rights Impact Analysis The Department has reviewed this rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, the Department has determined that this rule will not in any way limit or reduce the ability of participants to receive the benefits of donated foods in food distribution programs on the basis of an individual's or group's race, color, national origin, sex, age, political beliefs, religious creed, or disability. The Department found no factors that would negatively and disproportionately affect any group of individuals. I. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35; see 5 CFR part 1320) requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This proposed rule does not contain any new information collection requirements subject to review and approval by OMB. J. E-Government Act Compliance The Department is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. III. Background and Discussion of the Proposed Rule The Department is proposing to amend the regulations for FDPIR at 7 CFR part 253. The changes would improve program service by:
(1)Bringing the maximum level of allowable resources in line with the Food Stamp Program, including the establishment of a resource limit of $3,000 for households with a disabled member and an annual inflation adjustment to the resource limits starting in fiscal year 2009;
(2)allowing a resource exclusion for the first $1,500 of the value of one pre-paid funeral arrangement per household member; and
(3)allowing households in which all members are elderly and/or disabled to be certified for up to 24 months. These changes would also impact the operation of the Food Distribution Program for Indian Households in Oklahoma (FDPIHO), 7 CFR part 254, under which the eligibility and certification provisions of 7 CFR part 253 are adopted by reference at 7 CFR 254.5(a). In the following discussion and regulatory text, the term “State agency,” as defined at 7 CFR 253.2, is used to include ITOs authorized to operate FDPIR and FDPIHO in accordance with 7 CFR parts 253 and 254. The term “FDPIR” is used in this proposed rule to refer collectively to FDPIR and FDPIHO. A. Bring the Maximum Level of Allowable Resources in Line With the Food Stamp Program This proposed rule would amend 7 CFR 253.6(d)(1) to bring the maximum level of allowable resources in FDPIR in line with those established for the Food Stamp Program under Section 5(g) of the Food Stamp Act of 1977 (7 U.S.C. 2014(g)). This would mean:
(1)Establishing a new resource limit of $3,000 for households with a disabled member;
(2)increasing the resource limit from $1,750 to $2,000 for households without elderly or disabled members; and
(3)adjusting the above resource limits for inflation on an annual basis starting in fiscal year 2009, in accordance with Section 4104 of Public Law 110-234. The Department is proposing an additional change to ensure consistency with the Food Stamp Program in the treatment of the resources of elderly households. The Food Stamp Program allows all households that include one or more elderly members to have a resource limit of $3,000. Under FDPIR, only households with two or more elderly members are allowed a resource limit of $3,000. This rule proposes to amend 7 CFR 253.6(d)(1) to allow one-person elderly households to have a resource limit of $3,000. As indicated above, the resource limits would be adjusted for inflation on an annual basis starting in fiscal year 2009, in accordance with Section 4104 of Public Law 110-234. That section of the Act requires the annual adjustment of the Food Stamp Program resource standards to reflect changes in the Consumer Price Index for All Urban Consumers for the 12-month period ending the preceding June. The Consumer Price Index is published by the Bureau of Labor Statistics of the U.S. Department of Labor. This rule proposes to amend 7 CFR 253.6(d) to ensure that the FDPIR resource standards reflect the annual adjustments made to the Food Stamp Program resources standards. This rule also proposes to amend 7 CFR 253.7(c)(1), which contains the requirement that households report within 10 days when their countable resources exceed $1,750. This provision would be revised to specify that households must report within 10 days when their countable resources exceed the applicable maximum allowable limit. Also, this rule proposes to clarify 7 CFR 253.7(c)(1) to specify that the referenced 10-day period means 10 calendar days. The current regulations for FDPIR do not define “elderly” or “disabled”. Since FDPIR serves as an alternative nutrition assistance program to the Food Stamp Program, this rule proposes the adoption of the definitions used under the Food Stamp Program at 7 CFR 271.2. Accordingly, this rule proposes to amend 7 CFR 253.2 to include the definitions for elderly and disabled used under the Food Stamp Program. B. Resource Exclusion for the First $1,500 of the Value of One Pre-Paid Funeral Arrangement per Household Member The National Association of Food Distribution Programs on Indian Reservations has expressed concerns, in the form of a resolution passed by that Association, regarding households that are determined ineligible for FDPIR because of resources earmarked for funeral expenses. Families commonly commingle funds earmarked for funeral expenses with other household savings. Generally, there is no verifiable way to distinguish the funds held for funeral expenses from a household's general savings, which are considered available to the household for normal living expenses. To resolve this issue, Food Stamp Program regulations (7 CFR 273.8(e)(2)) allow a resource exclusion for “the value of one bona fide funeral agreement per household member, provided that the agreement does not exceed $1,500 in equity value, in which event the value above $1,500 is counted.” This provision allows each household member to ensure that the cost of their funeral will be covered, without jeopardizing the household's eligibility for food stamp benefits. This rule proposes to amend the regulations at 7 CFR 253.6(d)(2)(i) to ensure consistent treatment of pre-paid funeral agreements between FDPIR and the Food Stamp Program by allowing a resource exclusion for the first $1,500 of the equity value of one pre-paid funeral agreement per household member. A pre-paid funeral agreement is a pre-need agreement, or contract, with a bona fide funeral home, cemeterian, burial planner, etc., for funeral and/or burial services. As with other excluded resources, verification would not be required unless the information provided by the household is questionable (see 7 CFR 253.7(a)(6)(ii)). C. Extend Certification Periods Up to 24 Months for Households in Which All Members Are Elderly or Disabled This rule proposes to amend the regulations at 7 CFR 253.7(b)(2) to allow households in which all members are elderly and/or disabled to be certified for up to 24 months. Under current policy, certification periods are assigned according to the stability of a household's circumstances. Households consisting entirely of persons who only receive unearned income, such as Supplemental Security Income or Social Security payments, may be certified for up to 12 months, provided other household circumstances are expected to remain stable. In accordance with Section 801 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 193-104), which amended Section 3(c) of the Food Stamp Act of 1977 (7 U.S.C. 2012(c)), the Department published a final rulemaking (65 FR 70134) on November 21, 2000, that implemented the above provision under the Food Stamp Program. This provision would also benefit the elderly and disabled participants of FDPIR. The elderly and/or disabled households often have stable incomes, and their other household circumstances change infrequently. Also, because of health and transportation problems, these households often have difficulty in attending face-to-face interviews. Accordingly, this rule proposes to amend 7 CFR 253.7(b)(2) to state that FDPIR certification periods cannot exceed 12 months, except that households in which all adult members are elderly and/or disabled, as defined in the proposed definition at 7 CFR 253.2, may be certified for up to 24 months. This rule also proposes to require that the State agency must contact the household every 12 months. This means that if a household in which all adult members are elderly and/or disabled is certified for 24 months, the State agency would be required to have at least one direct contact with the household by the end of the first 12 months. The purpose of the contact is to determine:
(1)That the household wishes to continue to participate in FDPIR; and
(2)whether there are any changes in household circumstances that would warrant a redetermination of eligibility or a change in benefit level. In most cases, this contact could be made when the household receives its monthly distribution at the warehouse or tailgate site. However, some elderly and/or disabled households may rely on authorized representatives to pick up their commodities each month. In these instances, the State agency would be required to employ another method to contact the household. The State agency may use any method(s) it chooses for this contact, such as a telephone call or home visit. Contact with the authorized representative would not satisfy this requirement—a household member must be contacted. As with all actions taken by the State agency, the contact with the household must be documented in the case file to include the date of contact, method of contact, name of person contacted, whether the household wishes to continue to participate, and whether changes in household circumstances would warrant a redetermination of eligibility or a change in benefit level. List of Subjects in 7 CFR Part 253 Administrative practice and procedure, Food assistance programs, Grant programs, Social programs, Indians, Reporting and recordkeeping requirements, Surplus agricultural commodities. Accordingly, 7 CFR part 253 is proposed to be amended as follows: PART 253—ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR HOUSEHOLDS ON INDIAN RESERVATIONS 1. The authority citation for 7 CFR part 253 is revised to read as follows: Authority: 91 Stat. 958 (7 U.S.C. 2011-2036). 2. In § 253.2: a. Remove paragraph designations
(a)through
(j)and list the definitions in alphabetical order. b. Add new definitions entitled “Disabled member” and “Elderly member” in alphabetical order to read as follows: § 253.2 Definitions. *Disabled member* means a member of a household who:
(1)Receives supplemental security income benefits under title XVI of the Social Security Act or disability or blindness payments under titles I, II, X, XIV, or XVI of the Social Security Act;
(2)Receives federally- or State-administered supplemental benefits under section 1616(a) of the Social Security Act provided that the eligibility to receive the benefits is based upon the disability or blindness criteria used under title XVI of the Social Security Act;
(3)Receives federally- or State-administered supplemental benefits under section 212(a) of Public Law 93-66;
(4)Receives disability retirement benefits from a governmental agency because of a disability considered permanent under section 221(i) of the Social Security Act;
(5)Is a veteran with a service-connected or non-service-connected disability rated by the Veteran's Administration
(VA)as total or paid as total by the VA under title 38 of the United States Code;
(6)Is a veteran considered by the VA to be in need of regular aid and attendance or permanently housebound under title 38 of the United States Code;
(7)Is a surviving spouse of a veteran and considered by the VA to be in need of regular aid and attendance or permanently housebound or a surviving child of a veteran and considered by the VA to be permanently incapable of self-support under title 38 of the United States Code;
(8)Is a surviving spouse or surviving child of a veteran and considered by the VA to be entitled to compensation for a service-connected death or pension benefits for a non-service-connected death under title 38 of the United States Code and has a disability considered permanent under section 221(i) of the Social Security Act. “Entitled” as used in this definition refers to those veterans' surviving spouses and surviving children who are receiving the compensation or pension benefits stated or have been approved for such payments, but are not yet receiving them;
(9)Receives an annuity payment under: Section 2(a)(1)(iv) of the Railroad Retirement Act of 1974 and is determined to be eligible to receive Medicare by the Railroad Retirement Board; or section 2(a)(1)(v) of the Railroad Retirement Act of 1974 and is determined to be disabled based upon the criteria used under title XVI of the Social Security Act; or
(10)Is a recipient of interim assistance benefits pending the receipt of Supplemented Security Income, a recipient of disability related medical assistance under title XIX of the Social Security Act, or a recipient of disability-based State general assistance benefits provided that the eligibility to receive any of these benefits is based upon disability or blindness criteria established by the State agency, which are at least as stringent as those used under title XVI of the Social Security Act (as set forth at 20 CFR Part 416, Subpart I, Determining Disability and Blindness as defined in Title XVI). *Elderly member* means a member of a household who is sixty years of age or older. 3. In § 253.6: a. Amend paragraph (d)(1) by revising the second sentence; b. Revise paragraph (d)(2)(i). The revisions and addition read as follows: § 253.6 Eligibility of households.
(d)* * *
(1)* * * The household's maximum allowable resources shall not exceed the limits established for the Food Stamp Program.
(2)* * *
(i)The cash value of life insurance polices; pension funds, including funds in pension plans with interest penalties for early withdrawals, such as a Keogh plan or an Individual Retirement Account, as long as the funds remain in the pension plans; and the first $1,500 of the equity value of one bona fide pre-paid funeral agreement per household member. 4. In § 253.7: a. Amend paragraph (b)(2)(iii) by removing the last sentence; b. Add new paragraph (b)(2)(iv); c. Amend paragraph (c)(1) by revising the third sentence; The revision and addition read as follows: § 253.7 Certification of households.
(b)* * *
(2)* * *
(iv)In no event may a certification period exceed 12 months, except that households in which all adult members are elderly and/or disabled may be certified for up to 24 months. Households assigned certification periods that are longer than 12 months must be contacted by the State agency at least once every 12 months to determine if the household wishes to continue to participate in the program and whether there are any changes in household circumstances that would warrant a redetermination of eligibility or a change in benefit level. The State agency may use any method it chooses for this contact, including a face-to-face interview, telephone call or a home visit. Contact with the household's authorized representative would not satisfy this requirement; the State agency must contact a household member. The case file must document the contact with the household and include the date of contact, method of contact, name of person contacted, whether the household wishes to continue to participate, and whether changes in household circumstances would warrant a redetermination of eligibility or a change in benefit level.
(c)* * *
(1)* * * Households must also report within 10 calendar days when countable resources, which are identified in § 253.6(d)(2), exceed the maximum allowable limits as described at § 253.6(d)(1). * * * Dated: June 25, 2008. Nancy Montanez Johner, Under Secretary, Food, Nutrition, and Consumer Services. [FR Doc. E8-15003 Filed 7-2-08; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF ENERGY 10 CFR Part 430 [Docket No. EERE-2008-BT-STD-0006] RIN 1904-AB47 Energy Efficiency Program for Consumer Products: Notice to Extend the Comment Period for Residential Central Air Conditioners and Heat Pumps AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Extension of comment period for the Framework Document and subsequent public meeting request from interested parties. SUMMARY: On June 6, 2008, the Department of Energy
(DOE)published a notice of public meeting and availability of the Framework Document to the **Federal Register** (73 FR 32243) to announce to the public that DOE was beginning its rulemaking activities for residential central air conditioners and heat pumps. The notice of availability of the Framework document announced the closing date for receiving public comments would be July 7, 2008. Meeting attendees collectively requested that the comment period be extended to allow additional time to understand the document and prepare written comments. The Department agrees to this extension of the comment period and will extend the close of the comment period to 4:30 p.m.
(EDT)July 31, 2008. The Department does not foresee that this extension will affect the publication due dates for any subsequent documentation associated with this rule or any associated public meetings. The Framework document is written to inform stakeholders and to facilitate explanation of DOE's rulemaking process. It details the analytical approach and identifies several issues on which DOE is particularly interested in receiving comment. The Department of Energy is initiating the rulemaking and data collection process to consider establishing amended energy conservation standards for residential central air conditioners and heat pumps. DOE welcomes written comments from the public on this rulemaking. A copy of the Framework Document is available at: *http://www.eere.energy.gov/buildings/appliance_standards/residential/central_ac_hp.html* . DATES: Comments must be received at DOE on or before 4:30 PM
(EDT)July 31, 2008. ADDRESSES: Please submit written comments to the U.S. Department of Energy, Forrestal Building, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Stakeholder's comments should be identified by docket number EERE-2008-BT-STD-0006 and/or Regulation Identifier Number
(RIN)1904-AB47, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *E-mail: Brenda.Edwards@ee.doe.gov* or *Res_Central_AC_HP@ee.doe.gov* . Include EERE-2008-BT-STD-0006 and/or RIN 1904-AB47 in the subject line of the message. • *Mail:* Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, Framework Document for Central Air Conditioners and Heat Pumps, EERE-2008-BT-STD-0006 and/or RIN 1904-AB47, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Please submit one signed paper original. • *Hand Delivery/Courier:* Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Sixth Floor, 950 L'Enfant Plaza, SW., Washington, DC 20024. Please submit one signed paper original. *Instructions:* All submissions received must include the agency name and docket number or RIN for this rulemaking found at the beginning of this notice. *Docket:* For access to the docket and to read background documents, a copy of the transcript of the public meeting once it is available, or comments received, go to the U.S. Department of Energy, Resource Room of the Building Technologies Program, Sixth Floor, 950 L'Enfant Plaza, SW., Washington, DC 20024,
(202)586-2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards first at the above telephone number for additional information regarding visiting the Resource Room. FOR FURTHER INFORMATION CONTACT: Mr. Wes Anderson, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone:
(202)586-7335. *E-mail: Wes.Anderson@ee.doe.gov.* Mr. Eric Stas or Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone:
(202)586-9507. *E-mail: Eric.Stas@hq.doe.gov* or *Michael.Kido@hq.doe.gov.* Issued in Washington, DC, on June 23, 2008. Alexander A. Karsner, Assistant Secretary, Energy Efficiency and Renewable Energy. [FR Doc. E8-15142 Filed 7-2-08; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0685; Directorate Identifier 2008-CE-039-AD] RIN 2120-AA64 Airworthiness Directives; Stemme GmbH & Co. KG Model S10-VT Powered Sailplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: AD 2007-0315-E was issued to address a possible fuel leakage in the gear compartment in front of the engine and mandated inspections and replacement of fuel plastic-made connectors by connectors made of metal. Since its publication, another fuel leakage has been reported on a S10-VT which had implemented the STEMME Service Bulletin
(SB)A31-10-082 as required by AD 2007-0315-E. It has been determined that the fuel leak may have been caused by the deformation that the originally installed clamps created on the fuel hoses and thus preventing the new clamps from being sufficiently pinched to perform a correct tightening. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by August 4, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4130; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0685; Directorate Identifier 2008-CE-039-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion On May 23, 2008, we issued AD 2008-11-20, Amendment 39-15543 (73 FR 31355; June 2, 2008). That AD required actions intended to address an unsafe condition on the products listed above. AD 2008-11-20 was issued as an interim action in order to address the need for the immediate prevention of leaks in the area of the fuel line. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued Emergency AD No. 2008-0053-E, dated March 5, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The EASA AD requires mandatory replacement of STEMME part number (P/N) M476 single-ear clamps in the fuel system with P/N 10M-181 single-ear clamps on all affected sailplanes within 12 months after the effective date of the AD. The Administrative Procedure Act does not permit the FAA to “bootstrap” a long-term requirement into an urgent safety of flight action where the rule becomes effective at the same time the public has the opportunity to comment. The short-term action and the long-term action are analyzed separately for justification to bypass prior public notice. We are issuing this AD to address the mandatory replacement of all P/Ns M476 in the fuel system with P/Ns 10M-181. Relevant Service Information STEMME F & D has issued Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD will affect 46 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $11,040, or $240 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-15543 (73 FR 31355; June 2, 2008), and adding the following new AD: **Stemme GmbH & Co. KG:** Docket No. FAA-2008-0685; Directorate Identifier 2008-CE-039-AD. Comments Due Date
(a)We must receive comments by August 4, 2008. Affected ADs
(b)This AD supersedes AD 2008-11-20, Amendment 39-15543. Applicability
(c)This AD applies to Model S10-VT powered sailplanes, serial numbers 11-001 through 11-112, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 28: Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: AD 2007-0315-E was issued to address a possible fuel leakage in the gear compartment in front of the engine and mandated inspections and replacement of fuel plastic-made connectors by connectors made of metal. Since its publication, another fuel leakage has been reported on a S10-VT which had implemented the STEMME Service Bulletin
(SB)A31-10-082 as required by AD 2007-0315-E. It has been determined that the fuel leak may have been caused by the deformation that the originally installed clamps created on the fuel hoses and thus preventing the new clamps from being sufficiently pinched to perform a correct tightening. The present Airworthiness Directive
(AD)supersedes AD 2007-0315-E and requires you to check the fuel system according to the STEMME SB A31-10-083 as well as to replace single-ear clamps and plastic connectors. The actions specified by this AD are intended to reduce the potential for a fire to ignite and which could lead to loss of control of the sailplane. Actions and Compliance
(f)Unless already done, do the following actions:
(1)*For all sailplanes affected by this AD, except for serial numbers 11-036, 11-067, 11-068, and 11-090:* Before further flight after March 21, 2008 (the compliance date retained from AD 2008-03-06, which was superseded by AD 2008-11-20), replace all plastic T- and Y-connectors in the fuel system with metal connectors. Do the replacements following STEMME F & D Service Bulletin A31-10-082, AM.-Index: 01.a, dated November 30, 2007. Note: Serial numbers 11-036, 11-067, 11-068, and 11-090 had the plastic T- and Y-connectors in the fuel system replaced with metal connectors by the manufacturer.
(2)*For all sailplanes affected by this AD:* Before further flight after June 23, 2008 (the compliance date retained from AD 2008-11-20), inspect the fuel system for possible leakage. Do the inspection following STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008.
(3)*For all sailplanes affected by this AD:* If any leak is found during the inspection required in paragraph (f)(2) of this AD, before further flight, repair the leak following an FAA-approved procedure (the appropriate maintenance manual contains these procedures) and replace all STEMME part number (P/N) M476 single-ear clamps in the fuel system with P/N 10M-181 single-ear clamps. Do the replacements following STEMME F & D Service Bulletin A31-10- 083, Am-Index: 01.a, dated February 26, 2008.
(4)*For sailplanes that had P/Ns M476 replaced with P/Ns 10M-181 in compliance with AD 2008-11-20:* Before further flight after the effective date of this AD, do a leak test as specified in STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008.
(5)If a leak is found during the leak test required in paragraph (f)(4) of this AD, before further flight, repair the leak following an FAA-approved procedure. The appropriate maintenance manual contains these procedures.
(6)*For all sailplanes affected by this AD:* If no leak is found during the inspection required in paragraph (f)(2) of this AD, within the next 12 months after the effective date of this AD, replace all P/Ns M476 in the fuel system with P/Ns 10M-181. Do the replacements following STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008.
(7)Before further flight after doing the replacement required in paragraph (f)(6) of this AD, do a leak test as specified in STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008.
(8)If a leak is found during the leak test required in paragraph (f)(7) of this AD, before further flight, repair the leak following an FAA-approved procedure. The appropriate maintenance manual contains these procedures.
(9)*For all sailplanes affected by this AD:* After June 23, 2008 (the compliance date retained from AD 2008-11-20), do not install plastic “T” and “Y” shape connectors and P/N M476 single-ear clamps in the fuel system. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4130; fax:
(816)329-409. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency
(EASA)Emergency AD No. 2008-0053-E, dated March 5, 2008; STEMME F & D Service Bulletin A31-10-082, AM.-Index: 01.a, dated November 30, 2007; and STEMME F & D Service Bulletin A31-10-083, Am-Index: 01.a, dated February 26, 2008, for related information. Issued in Kansas City, Missouri, on June 27, 2008. John Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-15177 Filed 7-2-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-138355-07] RIN 1545-BG98 Modifications to Subpart F Treatment of Aircraft and Vessel Leasing Income AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking by cross-reference to temporary regulations and notice of proposed rulemaking. SUMMARY: In the Rules and Regulations section of this issue of the **Federal Register** , the IRS is issuing temporary regulations relating to the subpart F treatment of aircraft and vessel leasing income under sections 954 and 956 of the Internal Revenue Code
(Code)and the transfer of tangible property incorporated in aircraft and vessels that are used predominantly outside the United States under section 367 of the Code. The regulations reflect statutory changes made by section 415 of the American Jobs Creation Act of 2004 (AJCA). In general, the regulations will affect United States shareholders of controlled foreign corporations that derive income from the leasing of aircraft or vessels in foreign commerce and that transfer property subject to these leases to a foreign corporation. The text of those temporary regulations also serves as the text of these proposed regulations. DATES: Written or electronic comments and requests for a public hearing must be received by October 1, 2008. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-138355-07), Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-138355-07), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC., or sent electronically, via the Federal eRulemaking Portal at *http://www.regulations.gov* (IRS-REG-138355-07). FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations under section 367, John H. Seibert, at
(202)622-3860; concerning the proposed regulations under section 954 or 956, Paul J. Carlino at
(202)622-3840; concerning submissions of comments or a public hearing, Richard Hurst, at
(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background and Explanation of Provisions Temporary regulations in this issue of the **Federal Register** provide guidance under section 367 of the Code, relating to the nonrecognition of gain on certain property transferred to a foreign corporation if the property is used by the foreign corporation in the active conduct of a trade or business outside of the United States. The regulations also provide guidance under section 954 relating to the determination of whether rents derived from leasing an aircraft or vessel in foreign commerce will be treated as derived in the active conduct of a trade or business under section 954(c)(2)(A), and section 956, relating to whether an aircraft or vessel used in the transportation of persons or property in foreign commerce is excluded from U.S. property. The text of the temporary regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the temporary regulations and these proposed regulations. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the proposed regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. Ch. 6) does not apply. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Requests for a Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight
(8)copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the **Federal Register** . Drafting Information The principal authors of these regulations are John H. Seibert and Paul J. Carlino, Office of Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES **Paragraph 1** . The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805. * * * **Par. 2.** In § 1.367(a)-2 is added to read as follows: § 1.367(a)-2 Exception for transfers of property for use in the active conduct of a trade or business. [The text of the proposed § 1.367(a)-2 is the same as the text for § 1.367(a)-2T(a) through (e)(2) published elsewhere in this issue of the **Federal Register** .] **Par. 3.** In § 1.367(a)-4 is added to read as follows: § 1.367(a)-4 Special rules applicable to specified transfers of property (temporary). [The text of the proposed § 1.367(a)-4 is the same as the text for § 1.367(a)-4T(a) through (i)(1) published elsewhere in this issue of the **Federal Register** .] **Par. 4.** In § 1.367(a)-5 is added to read as follows: § 1.367(a)-5 Property subject to section 367(a)(1) regardless of use in trade or business. [The text of the proposed § 1.367(a)-5 is the same as the text for § 1.367(a)-5T(a) through (f)(3)(ii) published elsewhere in this issue of the **Federal Register** .] **Par. 5.** Section 1.954-2(c)(2)(ii), (c)(2)(v) and (c)(3) *Example 6* and
(i)are revised to read as follows: § 1.954-2 Foreign personal holding company income.
(c)* * *
(2)* * *
(ii)[The text of the proposed amendment to § 1.954-2(c)(2)(ii) is the same as the text of § 1.954-2T(c)(2)(ii) published elsewhere in this issue of the **Federal Register** .]
(v)[The text of the proposed amendment to § 1.954-2(c)(2)(v) is the same as the text for § 1.954-2T(c)(2)(v) published elsewhere in this issue of the **Federal Register** .]
(vi)[The text of the proposed amendment to § 1.954-2(c)(2)(vi) is the same as the text for § 1.954-2T(c)(2)(vi) published elsewhere in this issue of the **Federal Register** .]
(vii)[The text of the proposed amendment to § 1.954-2(c)(2)(vii) is the same as the text for § 1.954-2T(c)(2)(vii) published elsewhere in this issue of the **Federal Register** .]
(3)* * * *Example 6.* [The text of the proposed amendment to § 1.954-2(c)(3) *Example 6* is the same as the text for § 1.954-2T(c)(3) *Example 6* published elsewhere in this issue of the **Federal Register** .]
(i)[The text of the proposed amendment to § 1.954-2(c)(3)(i) is the same as the text for § 1.954-2T(c)(3)(i) published elsewhere in this issue of the **Federal Register** .] **Par. 6.** Section 1.956-2(b)(1)(vi) and
(e)are revised to read as follows: § 1.956-2 Definition of United States Property.
(b)* * *
(1)* * *
(vi)[The text of the proposed amendment to § 1.956-2(b)(1)(vi) is the same as the text for § 1.956-2T(b)(1)(vi) published elsewhere in this issue of the **Federal Register.** ]
(e)[The text of the proposed amendment to § 1.956-2(e) is the same as the text of § 1.956-2T(e) published elsewhere in this issue of the **Federal Register** ]. Linda E. Stiff, Deputy Commissioner for Services and Enforcement. [FR Doc. E8-14918 Filed 7-2-08; 8:45 am] BILLING CODE 4830-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2008-0337; FRL-8565-1] Revisions to the California State Implementation Plan, South Coast Air Quality Management District AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO <sup>X</sup> ) and oxides of sulfur (SO <sup>X</sup> ) emissions from facilities emitting 4 tons or more per year of NO <sup>X</sup> or SO <sup>X</sup> in the year 1990 or in any subsequent year under the SCAQMD's Regional Clean Air Incentives Market (RECLAIM) program. We are approving local rules that regulate these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). DATES: Any comments on this proposal must arrive by August 4, 2008. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2008-0337, by one of the following methods: 1. *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the on-line instructions. 2. *E-mail: steckel.andrew@epa.gov* . 3. *Mail or deliver:* Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *http://www.regulations.gov* or e-mail. *http://www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* The index to the docket for this action is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Lily Wong, EPA Region IX,
(415)947-4114, *wong.lily@epa.gov* . SUPPLEMENTARY INFORMATION: This proposal addresses the following SCAQMD rules: Rule 2004, Rule 2007, and Rule 2010. In the Rules and Regulations section of this **Federal Register** , we are approving these local rules in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action. Dated: April 22, 2008. Laura Yoshii, Acting Regional Administrator, Region IX. [FR Doc. E8-14883 Filed 7-2-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 173 and 177 [Docket No. PHMSA-2005-22987 (HM-238)] RIN 2137-AE06 Hazardous Materials: Requirements for the Storage of Explosives During Transportation AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Advance notice of proposed rulemaking (ANPRM); reopening of comment period and announcement of public meeting. SUMMARY: PHMSA is concerned that current requirements may not adequately address the risks associated with the storage of explosives while they are in transportation. On November 16, 2005, we published an advance notice of proposed rulemaking to solicit comments concerning measures to reduce those risks. The comment period closed February 14, 2006. To ensure that our stakeholders are fully aware of the risks we are addressing and given sufficient opportunity to comment, this ANPRM re-opens the comment period, summarizes the comments already in the docket, and announces a public meeting. DATES: *Written comments:* Comments must be received by October 1, 2008. *Public meeting:* August 7, 2008, starting at 9 a.m. and ending at 1 p.m. ADDRESSES: *Public meeting:* The meeting will be held at the U.S. DOT headquarters 1200 New Jersey Ave., SE., Washington, DC 20590. The main visitor's entrance is located in the West Building, on New Jersey Avenue and M Street. For detailed directions please see Section IV. To sign up for the meeting or to request special accommodations, please contact Mr. Ben Supko or Ms. Susan Gorsky at the telephone number or address listed under FOR FURTHER INFORMATION CONTACT below. *Comments:* You may submit comments identified by the docket number PHMSA-2005-22987 by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. • *Fax:* 1-202-493-2251. • *Mail:* Docket Operations, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* To Docket Operations, Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. *Instructions:* All submissions must include the agency name and docket number for this notice at the beginning of the comment. Note that all comments received will be posted without change to the docket management system, including any personal information provided. *Docket:* For access to the dockets to read background documents or comments received, go to *http://www.regulations.gov* or DOT's Docket Operations Office (see ADDRESSES ). *Privacy Act:* Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), which may also be found at *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Susan Gorsky or Ben Supko, Office of Hazardous Materials Standards, telephone
(202)366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-10, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Background On November 16, 2005 PHMSA published an advance notice of proposed rulemaking (ANPRM) under Docket HM-238 (70 FR 69493) to solicit comments concerning measures to reduce the risks posed by the storage of explosives while they are in transportation. For persons interested in viewing the ANPRM, it is accessible by PHMSA docket number (PHMSA-2005-22987) through the Federal eRulemaking Portal ( *http://www.regulations.gov* ). The ANPRM focused primarily on the safe storage of explosives. We also, however, invited commenters to address issues related to security and storage of other types of high-hazard materials. As indicated in the ANPRM, we are concerned that the current regulations do not adequately address the safety and security risks associated with the storage of explosives while they are in transportation. Brief summaries of the Federal Motor Carrier Safety Regulations (FMCSRs; 49 CFR parts 390-397) and Hazardous Materials Regulations (HMR; 49 CFR parts 171-180), as discussed in the ANPRM, are provided below: A. FMCSRs The FMCSRs are administered by the Federal Motor Carrier Safety Administration (FMCSA) to address driver qualifications; vehicle parts and accessories; driving requirements and hours of service; vehicle inspection, repair and maintenance; driving and parking rules for the transportation of hazardous materials; hazardous materials safety permits; and written route plans. The FMCSRs include requirements for storage of explosives incidental to movement. In accordance with the FMCSRs, a motor vehicle that contains Division 1.1, 1.2, or 1.3 explosives must be attended at all times, including during incidental storage, unless the motor vehicle is located on the motor carrier's property, the shipper or consignee's property, or at a “safe haven” (49 CFR 397.5). Under the FMCSRs, a “safe haven” is defined as an area specifically approved in writing by Federal, State, or local government authorities for the parking of unattended vehicles containing Division 1.1, 1.2, and 1.3 explosive materials (49 CFR 397.5(d)(3)). The decision as to what constitutes a safe haven is generally made by the local competent authority having jurisdiction over the area. The FMCSRs do not include requirements for safety or security measures for safe havens. The FMCSRs require any person who files a Motor Carrier Identification Report Form (MCS-150) according to the schedule set forth in § 390.19(a) of the 49 CFR and transports more than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 material or an amount of a Division 1.5 (explosive) material that requires placarding under part 172 of the 49 CFR to hold a valid safety permit. A safety permit is a document issued by FMCSA that contains a permit number and confers authority to transport in commerce the hazardous materials listed in § 385.403 (49 CFR 385.402). Persons holding a safety permit and transporting Division 1.1, 1.2, and 1.3 materials must prepare a written route plan that meets the requirements of § 397.67. The route plan requires carriers to establish a route that avoids heavily populated areas, places where crowds are assembled, tunnels, narrow streets, or alleys (49 CFR 397.67). In addition, a motor vehicle containing a Division 1.1, 1.2, or 1.3 explosive may not be parked on or within 5 feet of the traveled portion of a public highway or street; on private property without the consent of the person in charge of the property; or within 300 feet of a bridge, tunnel, dwelling, or place where people work or congregate unless for brief periods when parking in such locations is unavoidable (49 CFR 397.7(a)). B. HMR In accordance with the HMR, the same requirements apply to the transportation of hazardous materials whether the materials are incidentally stored or actually moving (e.g., shipping papers, emergency response information, hazard communication, packaging, and segregation). As a result, the HMR require each person who incidentally stores explosives during transportation to have a security plan. The security plan must be based on an assessment of possible security risks and must include measures to address those risks. Otherwise, the HMR do not provide standards or incorporate guidelines for facilities to follow when storing explosives incidental to transportation. C. ANPRM In the November 2005 ANPRM, we summarized government and industry standards for explosives storage. The standards focus on explosives storage, but vary greatly by mode of transportation, type of explosives, and whether the explosive is in transportation. The standards covered in the ANPRM are listed below. Detailed information on the standards may be obtained by accessing the public docket for this rulemaking. • Hazardous Materials Regulations (49 CFR parts 171-180). • Federal Motor Carrier Safety Regulations (49 CFR parts 350-399). • United States Coast Guard Requirements applicable to explosives storage (33 CFR parts 101-126). • Bureau of Alcohol, Tobacco, Firearms, and Explosives Regulations for explosives in commerce (27 CFR part 555). • National Fire Protection Association's NFPA 498, “Standard for Safe Havens and Interchange Lots for Vehicles Transporting Explosives” (NFPA 498). • Institute of Makers of Explosives Safety Library Publication No. 27, “Security in Manufacturing, Transportation, Storage and Use of Commercial Explosives.” • Surface Deployment and Distribution Command, “SDDC Freight Traffic Rules Publication NO. 1C (MFTRP NO. 1C).” II. Purpose and Scope of ANPRM The purpose of this ANPRM is to re-open the comment period, which originally closed February 14, 2006, and to announce a public meeting to solicit comments and discussion on the lack of uniform standards for establishing, approving, and maintaining safe havens for the temporary storage of explosives during motor vehicle transportation. As described in the sections above, there are currently no minimum or uniform criteria for federal, state, or local governments use when approving the establishment and operation of safe havens. In addition, it is likely that current, approved, safe havens do not comply with the very minimum requirements established by Part 397 of the FMCSRs. One way to decrease the risk associated with motor vehicles transporting explosives being left unattended at rest and truck stops is to require explosives to be attended at all times through the use of driver teams. However, historical experience indicates that this would increase the potential risk to the general public. Enforcing an “attendance” requirement is difficult at best. There would be little incentive for operators of vehicles to comply, they may even remove the placards and other visible evidence of the explosive being transported in order to leave the vehicles unattended at locations of their choice, such as residential communities and business districts. Another way of decreasing risk is to ensure that explosives are stored safely during transportation. Industry consensus standards, such as those provided in NFPA 498, and other guidelines could be incorporated into the HMR to establish a uniform baseline for safe haven locations. This is also a complicated issue that may actually reduce the number of safe havens. Owners of safe havens may be unwilling to absorb the cost required to bring their property into compliance. Development of new, less stringent standards may be an alternative that will balance the risk of unattended explosives with the cost of establishing and maintaining adequate safe haven locations. While our November 16, 2005 ANPRM focused primarily on safety issues related to the temporary storage of explosives transported by highway, we also discussed additional concerns regarding:
(1)Security;
(2)storage by rail and vessel modes; and
(3)storage of other high-hazard materials. Since publication of the ANPRM and after reviewing ongoing federal programs intended to enhance the safety and security of hazardous materials stored during transportation by all modes, we decided to narrow the scope of this rulemaking to address the area posing the largest risk to the public—the development of measures for ensuring the safety of explosives temporarily stored during transportation by motor vehicle. The following sections of this preamble detail some of the actions taken by PHMSA and other agencies that promise to reduce risks in the areas of rail and motor carrier security issues, storage during transportation by rail and vessel, and storage of high-hazard materials. A. PHMSA and TSA Rulemakings Related to Rail Security PHMSA and Transportation Security Administration
(TSA)are working cooperatively to address security issues related to the transportation by rail of high-hazard materials—toxic-inhalation-hazard
(TIH)materials, radioactive materials, and explosives. On December 21, 2006, PHMSA, in consultation with the Federal Railroad Administration
(FRA)and TSA, published a notice of proposed rulemaking (NPRM; 71 FR 76833) proposing to revise the current requirements in the HMR applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. Based on comments received in response to the NPRM and the provisions of the 9/11 Commission Act, we are adopting the following revisions to the security plan provisions: • Rail carriers must compile information and data on the commodities transported, including the routes over which these commodities are transported. • Rail carriers transporting the specified hazardous materials must use the data they compile and relevant information from state, local, and tribal officials, as appropriate, regarding security risks to high-consequence targets along or in proximity to a route to analyze the safety and security risks for each route used and practicable alternative routes to the route used. • Using these analyses, rail carriers must select the safest and most secure practicable route for the specified hazardous materials. • In developing their security plans, rail carriers must specifically address the security risks associated with shipments delayed in transit or temporarily stored in transit. • Rail carriers transporting the covered hazardous materials must notify consignees of any significant unplanned delays affecting the delivery of the hazardous material. • Rail carriers must work with shippers and consignees to minimize the time a rail car containing one of the specified hazardous materials is placed on track awaiting pick-up, delivery, or transfer. • Rail carriers must conduct security visual inspections at ground level of rail cars containing hazardous materials that have been accepted for transportation or placed in a train to check for signs of tampering or the introduction of an improvised explosive device (IED). Also on December 21, 2006, TSA published an NPRM proposing additional security requirements for rail transportation. The TSA rulemaking would enhance security in the rail transportation mode by proposing requirements on freight and passenger railroads, rail transit systems, and on facilities with rail connections that ship, receive, or unload certain hazardous materials. The TSA NPRM includes proposals applicable to the transportation of TIH materials, radioactive materials, and explosives by rail:
(1)Location reporting of rail cars upon request from TSA;
(2)enhanced chain-of custody procedures to ensure positive and secure change of physical custody when transferring rail cars between carriers and between carriers and rail hazardous materials shipper and receiver facilities;
(3)enhanced physical security measures for rail cars awaiting pick-up at shippers' facilities; and
(4)enhanced physical security measures for rail cars awaiting unloading at consignee facilities in high-threat urban areas. B. USCG Requirements Applicable to Explosives Storage The United States Coast Guard
(USCG)issues regulations for the safe and secure handling and storage of explosives and other dangerous cargos that are within or contiguous to waterfront facilities. The USCG's primary statutory authority is set forth in title 46, U.S. Code, the Ports and Waterways Safety Act, 33 U.S.C. 1221, *et seq.* , and the Espionage Act of 1917, as amended by the Magnuson Act of 1950, 16 U.S.C. 1858, and most recently by the Maritime Transportation and Security Act of 2002, 46 U.S.C. 70108, in addition to Executive Orders and Coast Guard regulations implementing the statutory authorities. The USCG regulations at 33 CFR part 126 establish requirements for designated waterfront facilities. Section 126.15 requires designated waterfront facilities that handle, store, stow, load, discharge, or transport dangerous cargo to meet specific conditions. These requirements adequately address safety issues associated with the temporary storage of explosives during transportation by vessel. C. TSA Hazardous Materials Truck Security Pilot In August 2005, TSA initiated the “TSA Hazardous Materials Truck Security Pilot.” This congressionally mandated pilot program was designed to test the functionality and capabilities of a centralized truck tracking system. The pilot utilized specific protocols capable of interfacing with existing truck tracking systems, government intelligence centers, and first responders. The goal was for TSA to establish and test a prototype Truck Tracking Center that would allow TSA to “continually” track truck locations and specific hazardous materials load types in all 50 states. The tracking system also allowed for automatic or manual notification of exception based events. The TSA Hazardous Materials Truck Security Pilot, including the prototype Truck Tracking Center, ended in 2007. As we indicated in a June 27, 2007 (72 FR 35211) notice withdrawing Docket HM-232A, entitled Security Requirements for Motor Carriers Transporting Hazardous Materials, any rulemaking to address motor carrier security tracking should be carried out under TSA's legal authority, rather than primarily as an amendment to the HMR. In the notice we advised the public that the TSA has assumed the lead role from PHMSA for rulemaking addressing the security of motor carrier shipments of hazardous materials under the HM-232A docket. Accordingly, we withdrew the ANPRM and closed the rulemaking proceeding. As described in the withdrawal notice, the action was consistent with and supportive of the respective transportation security roles and responsibilities of the DOT and DHS as delineated in a Memorandum of Understanding
(MOU)signed September 28, 2004, and the roles of TSA and PHMSA as outlined in an Annex to that MOU signed August 7, 2006. In light of these ongoing efforts and extensive consultation and coordination with TSA in several other areas to develop measures to enhance transportation security and to identify high-risk materials for which additional enhanced security measures may be necessary, we have decided to limit the focus of this rulemaking to the safe storage of explosives during transportation by motor vehicle. Working with TSA, we will continue to weigh security risks as we evaluate options for the safe storage of explosives during transportation by motor vehicle. III. Summary of Comments on the ANPRM We received 22 comments in response to the ANPRM, as follows: Commenter Document No. Rex C. Railsback PHMSA-2005-22987-002 Shell Chemical LP PHMSA-2005-22987-003 Institute of Makers of Explosives
(IME)PHMSA-2005-22987-004 North American Automotive Hazmat Action Committee (NAAHAC) PHMSA-2005-22987-006 Department of Defense Explosive Safety Board PHMSA-2005-22987-007 Pacific Maritime Association
(PMA)PHMSA-2005-22987-008 Association of American Railroads
(AAR)PHMSA-2005-22987-009 Baker Petrolite Corporation
(BPC)PHMSA-2005-22987-0010 Boyle Transportation PHMSA-2005-22987-0011 Air Transport Association PHMSA-2005-22987-0012 International Vessel Operators Hazardous Materials Association, Inc. (VOHMA) PHMSA-2005-22987-0013 U.S. Department of Energy
(DOE)PHMSA-2005-22987-0014 Onyx Environmental Services L.L.C.
(Onyx)PHMSA-2005-22987-0015 National Propane Gas Association
(NPGA)PHMSA-2005-22987-0016 PPG Industries, Inc.
(PPG)PHMSA-2005-22987-0017 Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA) PHMSA-2005-22987-0018 American Trucking Associations
(ATA)PHMSA-2005-22987-0019 The Alliance of Special Effects & Pyrotechnic Operators, Inc. (ASEPO) PHMSA-2005-22987-0020 Sporting Arms and Ammunition Manufacturers Institute, Inc. (SAAMI) PHMSA-2005-22987-0021 Dangerous Goods Advisory Council
(DGAC)PHMSA-2005-22987-0022 ARKEMA, Inc. (ARKEMA) PHMSA-2005-22987-0023 Compressed Gas Association
(CGA)PHMSA-2005-22987-0024 The comments are available for review through the Federal eRulemaking Portal ( *http://www.regulations.gov* ). Several of the commenters provided comments highlighting security concerns including specific DHS security initiatives (e.g., transportation worker identity credential (TWIC), cargo security) that are beyond the scope of this rulemaking. We support TSA efforts and agree that the TWIC program, cargo chain security regulations, and the truck security pilot will, when implemented, provide for a more efficient and effective means of screening employees, securing cargo, and ensuring hazardous materials are transported securely. It is not our intention to propose requirements applicable to the storage of explosives in transportation that will conflict with or duplicate DHS regulations. If we determine to move forward with rulemaking, our goal will be to enhance the safety of explosives stored during transportation while providing additional flexibility for motor carriers transporting these materials. Generally, commenters suggest that a lack of consistent regulations for the storage of explosives during transportation creates a significant safety concern. The commenters do not support a cookie-cutter solution that could limit transportation or create an undue burden for transportation by a particular mode. Commenters suggest that an effective approach would be one that promotes flexibility and provides several storage options for explosives while they are in transportation. As indicated above, the intention of the ANPRM was to gather information from commenters to help us determine if our stakeholders support further regulatory action. Below we paraphrase the questions asked in the ANPRM and provide a summary of the applicable comments. 1. Effectiveness of Different Types of Safety and Security Measures IME, NAAHAC, PMA, Boyle Transportation, VOHMA, Onyx , PPG, COSTHA, ASEPO, AAR, and ARKEMA provided comments regarding the effectiveness of different types of safety and security measures. Generally, these commenters suggest that current safety measures are on target, but could use some improvement. In its comments, ARKEMA outlines several issues that should be addressed in a rulemaking proposal, such as a clear and consistent definition of what constitutes a safe haven, attendance, and the Hours of Service Rules when locating safe havens. ONYX suggests constant attendance to effectively secure higher-risk explosives in Division 1.1, 1.2, and 1.3 during transportation. In addition, for materials in Division 1.4, 1.5 and 1.6, ONYX indicates adequate safety and security during transportation can be maintained by
(1)expediting delivery,
(2)minimizing the time the materials are located at a transfer facility, and
(3)providing site-specific security measures for any transfer facility. Boyle Transportation indicates handling and storage during transportation is adequately addressed by NFPA 498. According to Boyle Transportation, “This standard should be the baseline for any enhancements. And, if introduced into regulation, [NFPA 498] needs to be applicable to all modes so that these materials are consistently secured.” ATA, COSTHA, AAR, PMA, and VOHMA express concern regarding the development of a one-size fits all rulemaking and provide support for the adequacy of current requirements. ATA indicates the trucking industry has already implemented measures to ensure the safe transportation of hazardous materials. 2. The Costs Involved With Implementing Specific Safety and Security Measures IME, PMA, Boyle Transportation, VOHMA, ONYX, ATA, and ARKEMA provided comments regarding the costs of implementing enhanced safety measures. Most comments revolve around the costs of physical security, the impact of additional regulations on the explosives transportation industry, and the cost of constructing and maintaining safe havens. Boyle Transportation, ONYX, and ATA express concern regarding the dwindling number of carriers transporting explosives. According to Boyle Transportation, implementation of SDDC MFTRP No. 1C eliminated 27 of 30 possible terminals as temporary storage facilities, representing a more than 25% increase in carrier costs due to the inability to perform logistics activities and maintenance at terminal facilities. ATA indicates it is likely more requirements will lead to a niche industry that transports these materials at a much greater cost. ATA states requirements imposed upon this segment of the industry have led to a significant contraction in the number of carriers willing to transport explosives. Currently more than 500,000 carriers are registered with the FMCSA, and approximately 19 transport ammunition and explosives for DOD. Similarly, ONYX indicates it incurs approximately a 15-20% increase over the typical expense of transporting using a single driver when it uses dual drivers to transport Division 1.1, 1.2 and 1.3 materials. Boyle Transportation and ARKEMA provide additional comments regarding the number of safe havens and other storage locations for explosives. Boyle Transportation notes that less-than-truckload shipments were moved point-to-point as a result of carriers' inability to use terminals, generating much more mileage than previously consolidated shipments. ARKEMA indicates that, in an effort to meet guidelines and secure capacity to move their goods, explosives manufacturers might be forced to handle the transportation themselves or hire specialized carriers to perform the transportation. According to Boyle Transportation, a simple solution is to allow commercial vehicles transporting explosives to stop at Federally designated safe havens. In addition, Boyle Transportation states, “Most carriers that designed truck terminals for the handling and storage of explosives used NFPA 498 as a guideline.” 3. The Related Safety or Productivity Benefits That Would Help Offset Costs IME, PMA, Boyle Transportation, ONYX, and ATA provided comments in regard to safety and productivity benefits available to offset the costs of explosive storage standards. IME explains the key to explosives safety is exposing the minimum amount of people to the threat of an accidental explosion. Boyle Transportation states, “The safety benefit is insurance against the risk of a high consequence, low probability event. Most of this benefit accrues to the general public not the specific carrier.” According to ATA, the hazardous materials regulatory requirement to transport materials without undue delay has tremendous safety and security benefits. 4. The Effect That Implementing Specific Safety and Security Measures Will Have on the Human Environment IME, PMA, Boyle Transportation, ONYX, and ATA provided comments on the impact of implementing safety and security measures on the human environment. The comments were divided on this issue. IME expects little impact on the human environment. Boyle Transportation and ONYX indicate that reducing the safety and security risks associated with the transportation of explosives will benefit the public and regulated community. PMA and ATA suggest that disruptions in the flow of cargo may cause significant environmental and land use issues. 5. Ways or Incentives That May Be Appropriate To Consider in Promoting Adoption of Safety and Security Measures in Conjunction With or Separate From General Regulatory Requirements IME, NAAHAC, PMA, Boyle Transportation, ONYX, and ATA provided comments in response to this question. Generally, the commenters indicate citizens will benefit from the safe transportation of explosives and, therefore, it is beneficial for the government to promote such regulations. Funding methods provided by the commenters include reduced insurance rates, increased inspection protocols or frequencies, new or increased fines, tax credits or direct grants, surcharges or user fees on shipments, and research and education. Commenters suggest that these types of measures could be utilized to fund a more extensive safe haven program that accounts for the true costs and benefits it imposes. 6. The Overall Safety and Security of Safe Havens for Temporary Storage During Transportation, Including Suggestions for Improving Security at Safe Havens or Alternatives to the Use of Safe Havens The comments are divided when it comes to the safety and security of safe havens; however, commenters generally agree that the addition of accessible storage locations aids in the safe and secure transportation of explosives. PMA, Baker Hughes, VOHMA, ATA, and SAAMI express concern regarding any mandated use of safe havens. Baker Hughes states, “Restricting shipments to major shipping lanes where safe havens would be located would not allow us to efficiently service our customers. Shipments would actually be in transit longer, thereby creating more risk rather than less.” VOHMA, ATA, and SAAMI indicate storing explosives and other high-hazard materials in concentrated locations such as safe havens may cause terrorist actions to be directed toward safe havens. According to ATA, a driver's best defense may be to blend in with other trucks on the road as well as in a rest area. ATA states, “A standard that allows trucks carrying extremely hazardous materials to be parked in areas that meet Federal security standards may be more appropriate than the use of designated safe havens.” IME, NAAHAC, Boyle Transportation, ASEPO, and DGAC support the use of safe havens for the storage of explosives. ASEPO states, “a concerted effort on the part of the Federal government should be made to use its vast resource, including its land, to facilitate the creation of new safe havens in areas where those in private hands have been closed.” Boyle Transportation's comments indicate it agrees with the incorporation of safe havens into the HMR; however, different standards should be developed for temporary parking at truck stops and carrier terminals (less than 4 hours) than for handling or storage during transportation for up to 100 hours. IME and DGAC recommend the incorporation of *NFPA 498, Standard for Safe Havens and Interchange Lots for Vehicles Transporting Explosives (2006 ed.* ) into the HMR. DGAC goes on to state, to avoid frustration, “DGAC believes that facilities meeting NFPA 498, Standards for Safe Havens and Interchange Lots for Vehicles Transporting Explosives (2006 ed.) should be recognized as suitable safe havens.” 7. The Conditions and Circumstances Under Which Temporary Storage in Safe Havens Should Be Required IME, NAAHAC, Boyle Transportation, and ONYX support the performance-based standards provided in NFPA 498 and indicate they pave that way for consistent reasonable requirements for in transit storage facilities provided they are readily available. However, IME requests “FMCSA strike its vague and arbitrary condition at 397.5(d)(3)” which indicates a safe haven is a location approved by state or local government for the unattended parking of Division 1.1, 1.2, or 1.3 materials. In addition ONYX states, it would be “unreasonable for the other lower-hazard explosive materials, particularly when these materials are present in small quantities, as is most often the case (e.g., the less-than-truckload
(LTL)shipment of 2 flares classified as a Division 1.4 along with other hazardous wastes)” to comply with the safe haven requirements. Similarly, NAAHAC states, “Once established, temporary storage should apply to placardable quantities of Class 1 materials . . .” ATA, VOHMA, and DOE state their concerns regarding the mandated use of safe havens. ATA indicates that the current number of safe havens has been inadequate for years, and “Until there is an extensive network of safe havens, it is unreasonable to require carriers to use safe havens in the transportation of highly hazardous materials.” DOE and VOHMA express concern regarding the spacing and accessibility of safe havens. DOE indicates we must take into account a driver's ability to reach a designated safe haven based on weather conditions, emergencies, or other factors causing unanticipated delays. VOHMA's concerns focus around the placement of safe havens and the likelihood of frustrated shipments. VOHMA states, “The cost associated with frustrated cargoes for all goods is high, and certainly the costs associated with frustrated high hazard shipments would be even higher.” 8. Whether Specific Safety and Security Measures Should Be Limited to Certain Explosives and, if so, Which Explosives Might Warrant Specific Security or Safety Measures (i.e., to Which Explosives in Division 1 Through Division 6 and in What Quantity Should These Measures Apply) IME, NAAHAC, PMA, Boyle Transportation, ONYX, and ATA support specific safety and security measures for certain explosives, but differ on which measures should apply and which materials should be subject. IME prefers the application of the safety and security measures provided in SLP-27, which are applicable to explosives in Division 1.1, 1.2, and 1.3. NAAHAC states, “Specific safety and security transportation measures should be limited to explosive shipments that require placards.” PMA recommends we follow the standards provided in USCG requirements applicable to explosives storage (33 CFR Part 126) as they apply to type and quantity of materials. Boyle Transportation supports increased safety and security measures for Division 1 through Division 1.4 explosives. In addition, Boyle states, “Shipments of explosives should require two drivers.” ONYX indicates the use of safe havens for lower-hazard explosives materials is not justified; however, it supports the current FMCSA requirements for Division 1.1, 1.2, and 1.3 explosives to be attended at all times. To limit extremely hazardous materials in one place, ATA states, “One concept that merits additional consideration is using the concept of maximum net explosive mass as a means of limiting the quantity of extremely hazardous materials that are allowed to be present on any one transport vehicle, train, ship, or in any one area.” 9. Whether We Should Consider Aggregation Limits on the Storage of Explosives and Other High-Hazard Materials at a Single Facility During Transportation Shell Chemical, NAAHAC, PMA, Baker Hughes, VOHMA, CGA, and AAR oppose aggregation limits on the storage of explosives at a single facility during transportation. Shell Chemical states, “Limits on storage would place a burden on certain locations and disrupt their operational processes.” NAAHAC expresses concern regarding the likelihood of drivers being required to seek alternate safe haven due to the fact that a facility had already reached its “allowable” quantity of Class 1 hazardous materials. NAAHAC indicates under such circumstances the drivers may have to drive hundreds of miles to seek an alternate parking location and possibly violate the FMCSA hours of operation limit, providing for a greater risk. IME, Boyle Transportation, ONYX, and ATA indicate they may support an aggregation limit on the amount of explosives stored at a single facility while in transportation. IME states, “Risk-based aggregation limits on the storage of explosives and other high-hazard materials at a single facility during transportation are appropriate.” ATA supports the concept of limiting the quantity based on a maximum net explosive mass. 10. Whether We Should Consider Limits on the Time That a Shipment of Explosives or Other High-Hazard Materials Could Be Stored During Transportation Shell Chemical, IME, NAAHAC, PMA, ATA, and CGA indicate we should not consider limits on the amount of time explosives or other high-hazard materials may be stored during transportation. Shell Chemical indicates time limits will have an enormous impact on the supply systems for these materials and would do nothing more than shift the risk from one jurisdiction to others. IME and CGA indicate the requirement for materials to be transported without undue delay is sufficient. CGA states “DOT has also stated that anything should be deliverable within 10 days. This was their reason to require a shipping paper to be retained for 375 days before the recent change to the 2-year retention period.” 11.Whether Shipping Documents Should Indicate That a Shipment Will Be Stored at a Safe Haven or Other Facility During Transportation IME, Boyle Transportation, and ONYX agree that shipping documents should provide the locations where a shipment will be stored during transportation. IME states, “Shipping documents, specifically the route or trip plan, should indicate all stops which includes storage at a safe haven or other facility during transportation.” Boyle Transportation states “A documented route of travel (paper or electronic) and tracking systems that detect out of route conditions should be a requirement for all modes and stops for safe haven en route should be identified. ONYX indicates it would support the addition of storage locations on the route plan for Division 1.1, 1.2 or 1.3 materials but not for other explosives in Divisions 1.4, 1.5, and 1.6. 12. Whether There Are Additional Standards, Other Than Those Outlined Above, That We Should Take Into Consideration NAAHAC, PMA, Boyle Transportation, and CGA indicated we may want to review additional standards and programs for developing uniform storage requirements for explosives during transportation. Those standards and programs are listed below: • Uniform Fire Code and International Fire Code; • Requirements for a Declaration of Security under Coast Guard regulations; • Hazards of Electromagnetic Radiation to Ordnance
(HERO)certification required by DOD for any electronic system in a commercial vehicle used to transport DOD munitions. • Safety Permit regulation to transport highly toxic (Zone A) and bulk quantities of dangerous goods • Risk Management Programs—regulate the amounts of highly toxic dangerous goods stored at a facility • CDL hazmat endorsement • Driver background checks • State laws pertaining to dangerous goods transport 13. Whether Development of an Industry or Consensus Standard or Regulation Should Be Pursued in This Area Shell Chemical, Boyle Transportation, and ATA highlight the importance of involving industry representatives in the rulemaking process. IME and NAAHAC support our development of a rulemaking in this area. IME calls for the adoption of the consensus standard, NFPA 498. PMA, ONYX, and CGA indicate they do not support regulatory action in this area. ONYX indicates it supports the use and operation of safe havens, but “does not believe there is a need for PHMSA to pursue regulations for the transportation of explosive materials.” IV. Public Meeting We are holding a public meeting on Thursday, August 7, 2008 at U.S. DOT headquarters located at 1200 New Jersey Ave, SE., Washington, DC 20590. The meeting will begin at 9 a.m. in conference room 6 of our Conference Center, which is located in the atrium of the West Building. The main visitor's entrance is located in the West Building, on New Jersey Avenue and M Street. Upon entering the lobby, visitors must report to the security desk. Visitors should indicate that they will be attending the Explosives Storage Public Meeting and wait to be escorted to the Conference Center. Due to the limited amount of parking around DOT Headquarters, use of public transit is strongly advised. DOT is served by the Navy Yard Metrorail Station (Green line). The closest exit to DOT Headquarters is the Navy Yard exit. The West building is located diagonally across M Street from the Navy Yard Metrorail Station. The public meeting will focus on safety issues associated with the temporary storage of explosives during transportation. PHMSA encourages all interested persons, including state and local officials, emergency response personnel, and explosives shippers and carriers, to participate in this meeting. We would like to use this forum to promote a dialogue among all interested stakeholders to help us identify the most appropriate strategies for enhancing the safe storage of explosives during transportation. Any person wishing to participate in the public meeting should provide their name and organization to Ben Supko or Susan Gorsky, by telephone or in writing no later than July 24, 2008. Providing this information will facilitate the security screening process for entry into the building on the day of the meeting. Participants do not need to prepare oral comments, but rather, be prepared to take part in an open discussion on issues raised by the comments summarized above. Some questions to consider before the meeting include: 1. Are safe havens currently available? How many? Where are they located? 2. Would a network of safe havens provide a safety benefit? 3. What is the value of a rest stop for the vehicle and the driver? 4. Would companies use safe havens or continue using driver teams? Does one promote safety more than the other? 5. Would the adoption of an industry consensus standard such as NFPA 498 promote the development of safe havens? 6. Do facilities that are being used as safe havens meet the requirements of NFPA 498? 7. Would you expect companies to convert existing facilities that meet NFPA 498 into safe havens? 8. How can we improve on the safety measures provided in NFPA 498? Should we include aggregation limits, time limits, etc.? 9. If we incorporate by reference NFPA 498 into the HMR, should we expect a drop in the number of carriers similar to what occurred when DOD implemented SDDS MFTRP No.1C? 10. Would it be more appropriate to align safe havens with the SDDC MFTRP No.1C than a consensus standard such as NFPA 498? 11. What is the impact of eliminating the requirement for safe havens to be approved by Federal, state, or local government officials? 12. Would state and local governments allow the development of safe havens without prior approval? 13. Are zoning restrictions the primary force against the development of safe havens? 14. What emergency response needs must be taken into consideration when selecting a location for a safe haven and how should they be addressed? 15. Are areas that house carrier facilities (close proximity to transportation arteries, industrial parks, etc.) sufficient locations for safe havens in terms of emergency response capabilities? 16. What costs apply to the operation of safe havens? 17. Would safe haven operators charge a fee to carriers for allowing them to use their safe haven? 18. Is the concept of temporary parking (less than 4 hours) at truck stops and carrier terminals a sufficient alternative to safe havens? We also urge interested parties to identify issues we may have overlooked in the ANPRM. For example, the ANPRM made no mention of a final report entitled, “Recommended National Criteria for the Establishment and Operation of Safe Havens” that was published in November of 1990 by the Commercial Vehicle Safety Alliance (CVSA). The CVSA report may be outdated, but it did address available safe havens, future locations for safe havens, a national standard for safe havens, and several other issues pertinent to this docket. For persons interested in preparing comments or viewing the CVSA report, it is accessible by PHMSA docket number (PHMSA-2005-22987) on the Federal eRulemaking Portal (on the Web site *http://www.regulations.gov).* V. Regulatory Analyses and Notices A. Executive Order 12866: Regulatory Planning and Review Executive Order 12866 requires agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” We therefore request comments, including specific data if possible, concerning the costs and benefits that may be associated with adoption of specific storage requirements for carriers that include explosives storage as part of their transportation cycle. B. Executive Order 13132: Federalism Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. We invite State and local governments with an interest in this rulemaking to comment on the effect that adoption of specific storage requirements for carriers that transport and store explosives in commerce may have on State or local safety or environmental protection programs. C. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that “significantly or uniquely affect” Indian communities and that impose “substantial and direct compliance costs” on such communities. We invite Indian tribal governments to provide comments as to the effect that adoption of specific storage requirements for explosives that are transported in commerce may have on Indian communities. D. Regulatory Flexibility Act Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 *et seq.* ), we must consider whether a proposed rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. If your business or organization is a small entity and if adoption of specific storage requirements applicable to explosives transported in commerce could have a significant economic impact on your operations, please submit a comment to explain how and to what extent your business or organization could be affected. E. National Environmental Policy Act The National Environmental Policy Act of 1969
(NEPA)requires Federal agencies to consider the consequences of major Federal actions and that they prepare a detailed statement on actions significantly affecting the quality of the human environment. Interested parties are invited to address the potential environmental impacts of regulations applicable to the storage of explosives transported in commerce. We are particularly interested in comments about safety measures that would provide greater benefit to the human environment, or on alternative actions the agency could take that would provide beneficial impacts. F. Statutory/Legal Authority for This Rulemaking This rulemaking is issued under authority of the Federal hazardous materials transportation law (49 U.S.C. 5101 *et seq.* ), which authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in interstate, intrastate, and foreign commerce. G. Regulation Identifier Number
(RIN)The Department of Transportation assigns a regulation identifier number
(RIN)to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document may be used to cross-reference this action with the Unified Agenda. H. Privacy Act Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477) or you may visit *http://www.regulations.gov.* Issued in Washington, DC, on June 30, 2008, under authority delegated in 49 CFR part 106. Theodore L. Willke, Associate Administrator for Hazardous Materials Safety. [FR Doc. E8-15119 Filed 7-2-08; 8:45 am] BILLING CODE 4910-60-P 73 129 Thursday, July 3, 2008 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket No.: AMS-DA-08-0026; DA-08-03] Request for an Extension of and Revision to a Currently Approved Information Collection AGENCY: Agricultural Marketing Service, the Department of Agriculture (USDA). ACTION: Notice and request for comments. SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's
(AMS)intention to request an extension for and revision to a currently approved information collection for the Regulations Governing the Inspection and Grading of Manufactured or Processed Dairy Products—Recordkeeping (Subpart B). DATES: Comments received by September 2, 2008, will be considered. *Additional Information or Comments:* Contact Reginald L. Pasteur, USDA/AMS/Dairy Programs, Dairy Standardization Branch, Room 2746-South Building, 1400 Independence Avenue, SW., Washington, DC 20250-0230; Telephone: 202-690-3571, Fax: 202-720-2643, or e-mail *Reginald.pasteur@usda.gov.* All comments will be available for public inspection at the above location, or on the Internet at *http://www.regulations.gov.* SUPPLEMENTARY INFORMATION: *Title:* Regulations Governing the Inspection and Grading of Manufactured or Processed Dairy Products—RecordKeeping (Subpart B). *OMB Number:* 0581-0110. *Expiration Date of Approval:* January 31, 2009. *Type of Request:* Extension and revision of a currently approved information collection. *Abstract:* The Agricultural Marketing Act
(AMA)of 1946 (7 U.S.C. 1621 *et seq.* ) directs the Department to develop programs which will provide for and facilitate the marketing of agricultural products. One of these programs is the USDA voluntary inspection and grading program for dairy products (7 CFR Part 58) where these dairy products are graded according to U.S. grade standards by a USDA grader. The dairy products under the dairy program may be identified with the USDA grade mark. Dairy processors, buyers, retailers, institutional users, and consumers have requested that such a program be developed to assure the uniform quality of dairy products purchased. In order for any service program to perform satisfactorily, there are regulations for the provider and user. For these reasons, the dairy inspection and grading program regulations were developed and issued under the authority of the Act. These regulations are essential to administer the program to meet the needs of the user and to carry out the purposes of the Act. The information collection requirements in this request are essential to carry out the intent of the AMA to ensure that dairy products are produced under sanitary conditions and that buyers are purchasing a quality product. In order for the Regulations governing the Inspection and Grading of Manufactured or Processed Dairy Products to serve the government, industry, and the consumer, laboratory test results must be recorded. Respondents are not required to submit information to the agency. The records are to be evaluated by a USDA inspector at the time of an inspection. These records include quality tests of each producer, plant records of required tests and analysis, and starter and cheese make records. As an offsetting benefit, the records required by USDA are also records that are routinely used by the inspected facility for their own supervisory and quality control purposes. *Estimate of Burden:* Public reporting burden for this collection of information is estimated to average 2.85 hours per response. *Respondents:* Dairy products manufacturing facilities. *Estimated Number of Respondents:* 487. *Estimated Number of Responses:* 1388. *Estimated Number of Responses per Respondent:* 2.85. *Estimated Total Annual Burden on Respondents:* 3956. Comments are invited on:
(1)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Reginald Pasteur, 1400 Independence Avenue, SW., Room 2746—South, Washington, DC 20250-0230. All comments received will be available for public inspection at the above location, or on the Internet at *http://www.regulations.gov.* All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. Dated: June 27, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-15075 Filed 7-2-08; 8:45 am] BILLING CODE 3410-02-P COMMISSION ON CIVIL RIGHTS Sunshine Act Notice AGENCY: United States Commission on Civil Rights ACTION: Notice of briefing and meeting. Date and Time: Friday, July 11, 2008; 9:30 a.m. Place: U.S. Commission on Civil Rights, 624 Ninth Street, NW., Rm. 540, Washington, DC 20425. Meeting Agenda I. Approval of Agenda II. Approval of Minutes • June 6, 2008 Meeting. III. Staff Director's Report IV. Motion for Executive Session V. Management and Operations • Status of FY 2008 Budget. • FY 2009 Budget Submission to Congress. VI. Program Planning • 2010 Program Planning. • Briefing Report on Racial Categorization in the Census. • Briefing Report on the Deliberate Creation of Racially Identifiable School Districts in Omaha, Nebraska. VII. State Advisory Committee Issues • Arkansas SAC. • Wisconsin SAC. VIII. Other Business • DOT Guidance Regarding Disadvantaged Business Enterprise (“DBE”) Program. IX. Future Agenda Items X. Adjourn FOR FURTHER INFORMATION CONTACT: Lenore Ostrowsky, Acting Chief, Public Affairs Unit
(202)376-8582. Dated: July 1, 2008. Emma Monroig, Solicitor. [FR Doc. 08-1410 Filed 7-1-08; 1:29 pm]
Connectionstraces to 49
Traces to 49 documents
U.S. Code
66 references not yet in our index
  • 14 CFR 71
  • 1 CFR 51
  • 14 CFR 95
  • 21 CFR 530
  • Pub. L. 103-396
  • 26 CFR 1
  • T.D. 9406
  • Pub. L. 108-357
  • 118 Stat. 1418
  • 29 CFR 4003
  • Pub. L. 109-280
  • 33 CFR 165
  • 5 USC 601-612
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
  • 40 CFR 52
  • 40 CFR 51
  • 40 CFR 81
  • Pub. L. 104-4
  • 40 CFR 58
  • 427 U.S. 246
  • 421 U.S. 60
  • 44 CFR 67
  • 44 CFR 60
  • 44 CFR 10
  • 47 CFR 73
  • 50 CFR 622
  • 50 CFR 635
  • 50 CFR 635.8
  • 50 CFR 635.4(d)(4)
  • 50 CFR 635.4(m)(2)
  • 7 CFR 253
  • Pub. L. 110-234
  • Pub. L. 107-171
  • 7 CFR 3015
  • 5 CFR 1320
  • 7 CFR 254
  • 7 CFR 254.5(a)
+ 26 more
Citation graph
cites case law
Unknown
Final rule
C.F.R.§ 71.1
Fed. Reg.Notices
U.S.C.§ 106
U.S.C.§ 1453
U.S.C.§ 321
U.S.C.§ 7805
C.F.R.§ 4003.58
C.F.R.§ 4003.59
C.F.R.§ 4003.1
SCOTUS427 U.S. 246
SCOTUS421 U.S. 60
Cite14 CFR 71
Cites 115 · showing 12Cited by 0 across 0 sources
★   the supreme law of the land   ★
Don't Tread on Me
E Pluribus Unum — out of many, one

"If you don't know your rights, you don't have any."

Marginalia · a citizen's law index
A research desk, not legal advice. Always read the cited source before relying on a summary.
Questions or an issue? support@self-law.org
disclaimerMarginalia is a research index, not a law firm. Nothing on this site is legal, tax, or financial advice and no attorney–client relationship is formed by using it. Statutes, regulations, and case law change; summaries, search results, AI output, and member posts may be incomplete, out of date, or wrong. Any interpretation drawn from material on this site should be validated by a licensed attorney in your jurisdiction before you act on it.