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Code · REGISTER · 2008-07-11 · Agriculture Agriculture Department See Forest Service Antitrust Antitrust Division NOTICES National Cooperative Research and Production Act of 1993: Cable Television Laboratories, Inc., 39986-39987 E8 · Unknown

Unknown. Final rule

106,877 words·~486 min read·/register/2008/07/11/08-1429

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-2008-07-11.xml --- 73 134 Friday, July 11, 2008 Contents Agriculture Agriculture Department See Forest Service Antitrust Antitrust Division NOTICES National Cooperative Research and Production Act of 1993: Cable Television Laboratories, Inc., 39986-39987 E8-15555 Interchangeable Virtual Instruments Foundation, Inc., 39987 E8-15557 International Association for Continuing Education and Training, 39987 E8-15566 National Floor Safety Institute, 39987 E8-15554 PXI Systems Alliance, Inc., 39987-39988 E8-15556 Army Army Department NOTICES Inland Waterways Users Board;
Request for Nominations, 39952-39953 E8-15774 Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 39963-39964 E8-15501 E8-15502 Coast Guard Coast Guard RULES Safety and Security Zones: Northeast Gateway Deepwater Port, Atlantic Ocean, MA; Liquefied Natural Gas Carriers, Massachusetts Bay, MA, 39868-39871 E8-15947 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List Additions and Deletion, 39938-39939 E8-15781 Defense Defense Department See Army Department Education Education Department NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 39953-39954 E8-15498 E8-15853 Employment Employment and Training Administration NOTICES Change in Status of an Extended Benefit Period for Rhode Island, 39988 E8-15807 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities, 39871-39875 E8-15872 PROPOSED RULES Approval and Promulgation of Air Quality Implementation Plans:
Texas; Dallas/Fort Worth 1-Hour Ozone Nonattainment Area, 39897-39900 E8-15809 Approval and Promulgation of Implementation Plans: Texas; Control of Emissions of Nitrogen Oxides from Cement Kilns, 39900-39915 E8-15812 E8-15814 NOTICES Environmental Impact Statements; Availability, etc., 39958-39960 E8-15813 E8-15842 Integrated Science Assessment for Oxides of Nitrogen—Health Criteria, 39960-39961 E8-15726 Meetings: Public Teleconference Meeting of the Chartered Science Advisory Board, 39961 E8-15798 Total Coliform Rule Distribution System Advisory Committee, 39962 E8-15844 Equal Equal Employment Opportunity Commission RULES Enforcement of Nondiscrimination on the Basis of Disability in Programs or Activities Conducted by the Equal Employment Opportunity Commission, etc., 39866-39868 E8-15764 FAA Federal Aviation Administration NOTICES Environmental Impact Statements;
Availability, etc.: Chicago/Rockford International Airport, Rockford, IL, 40010 E8-15551 Environmental Impact Statements; Intent, etc.: Gnoss Field, Novato, Marin County, CA, 40010-40011 E8-15209 Intent to Rule on Request to Release Airport Property: Hondo Municipal Airport, Hondo,TX, 40011 E8-15552 Receipt of Noise Compatibility Program and Request for Review: Meadows Field Airport, Bakersfield, CA, 40011-40012 E8-15550 FDIC Federal Deposit Insurance Corporation NOTICES Meetings;
Sunshine Act, 39962-39963 E8-15849 E8-15850 Federal Energy Federal Energy Regulatory Commission NOTICES Environmental Assessment; Intent: Algonquin Gas Transmission, LLC, 39954-39956 E8-15792 Institution of Proceeding and Refund Effective Date, 39956 E8-15790 Paper Scoping and Soliciting Scoping Comments and Errata to Tendering Notice: Hydrodynamics, Inc., 39956-39958 E8-15789 E8-15791 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statement; Intent:
Anchorage, AK, 40012-40013 E8-15770 Federal Railroad Federal Railroad Administration RULES Rail Line Relocation and Improvement Projects; Capital Grants, 39875-39889 E8-15160 Federal Reserve Federal Reserve System NOTICES Meetings; Sunshine Act, 39963 08-1429 FTC Federal Trade Commission RULES Automotive Fuel Ratings, Certification and Posting, 40154-40165 E8-15245 Fish Fish and Wildlife Service NOTICES Draft Comprehensive Conservation Plan/Environmental Impact Statement: Desert National Wildlife Refuge Complex, Clark, Lincoln, and Nye Counties, NV, 39979-39981 E8-15631 Draft Comprehensive Conservation Plan and Environmental Assessment;
Availability: Delta and Breton National Wildlife Refuges, LA, 39978-39979 E8-15762 Swanquarter National Wildlife Refuge, Hyde County, NC; Correction, 39979 E8-15917 Papahanaumokuakea Marine National Monument, Hawai’i, 39951-39952 E8-15847 Food Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 39964 E8-15795 Draft Guidance for Industry: Providing Regulatory Submissions in Electronic Format-Drug Establishment Registration and Drug Listing;
Availability, 39964-39968 E8-15801 Global Harmonization Task Force, Study Groups 1 and 5; Proposed and Final Documents; Availability, 39968-39969 E8-15797 Guidance for Industry and Food and Drug Administration Staff: Surveillance and Detention Without Physical Examination of Surgeons’ and/or Patient Examination Gloves; Availability, 39969-39972 E8-15765 E8-15766 Meetings: Approaches to Reduce Risk of Transfusion-Transmitted Babesiosis in the United States, 39972 E8-15799 Request for Nominations for Voting Members on Public Advisory Committee:
Food Advisory Committee, 39972-39973 E8-15839 Forest Forest Service NOTICES Proposed New Fee Sites, 39938 E8-15553 Health Health and Human Services Department See Children and Families Administration See Food and Drug Administration See Indian Health Service See National Institutes of Health See Substance Abuse and Mental Health Services Administration Homeland Homeland Security Department See Coast Guard See U.S. Immigration and Customs Enforcement Indian Indian Affairs Bureau RULES Law and Order on Indian Reservations, 39857-39863 E8-15599 Indian Indian Health Service NOTICES Competitive Continuation and New Grants Funding;
Correction, 40014 Z8-14457 Tribal Self-Governance Program; Planning Cooperative Agreement, 39973-39977 E8-15629 Industry Industry and Security Bureau NOTICES Meetings: Sensors and Instrumentation Technical Advisory Committee, 39939 E8-15870 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See Minerals Management Service See National Park Service International International Trade Administration NOTICES Amended Final Results of Administrative Reviews Pursuant to Final Court Decisions:
Freshwater Crawfish Tail Meat from the People's Republic of China, 39939-39940 E8-15811 Antidumping Duty Administrative Review: Certain Frozen Warmwater Shrimp from Brazil, 39940-39945 E8-15827 Certain Frozen Warmwater Shrimp from Ecuador, 39945-39948 E8-15830 Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 39948-39949 E8-15511 Decision on Application for Duty-Free Entry of Electron Microscopes: Howard Hughes Medical Institute, 39949-39950 E8-15832 Justice Justice Department See Antitrust Division See Prisons Bureau NOTICES Lodging of Consent Decree under the Safe Drinking Water Act, 39985-39986 E8-15806 Settlement Agreements:
Jack R. Bennett, 39986 E8-15504 Labor Labor Department See Employment and Training Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Decision Approving Lands For Conveyance: Alaska Native Claims Selection, 39982 E8-15782 Environmental Impact Statements; Availability, etc.: Proposed Sunrise Powerlink Project; CA, 39982-39983 E8-15943 Meetings: BLM-Alaska Resource Advisory Council, 39983-39984 E8-15772 Minerals Minerals Management Service NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals; Correction, 40014 Z8-14893 NASA National Aeronautics and Space Administration NOTICES National Environmental Policy Act; Disposition of Space Shuttle Program's Real and Personal Property, 39989-39991 E8-15751 National Highway National Highway Traffic Safety Administration RULES Schedule of Fees Authorized: Offer of Cash Deposits or Obligations of the United States, 39890-39896 E8-14858 NOTICES Consumer Information; New Car Assessment Program, 40016-40050 E8-15620 NIH National Institutes of Health NOTICES Meetings:
National Heart, Lung, and Blood Institute, 39977 E8-15374 NOAA National Oceanic and Atmospheric Administration PROPOSED RULES Fisheries Off West Coast States: Pacific Coast Groundfish Fishery (Amendment 15), 39930-39937 E8-15833 International Fisheries; Pacific Tuna Fisheries: Revisions to Regulations for Vessels Authorized to Fish for Tuna and Tuna-like Species in the Eastern Tropical Pacific Ocean, 39915-39930 E8-15803 NOTICES Availability of Grant Funds (FY 2009), 40052-40085 E8-15720 Endangered Species (File Nos. 13306 and 13307), 39950 E8-15835 Environmental Impact Statement for Amendment 30B:
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico, 39950-39951 E8-15802 Marine Mammals (File No. 716-1705), 39951 E8-15834 Papahanaumokuakea Marine National Monument, Hawai’i, 39951-39952 E8-15847 U.S. Climate Change Science Program Synthesis and Assessment Product Draft Report 2.3: Aerosol Properties and Their Impacts on Climate, 39952 E8-15800 National Park National Park Service NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 39984-39985 E8-15590 E8-15592 Nuclear Nuclear Regulatory Commission NOTICES Availability Of Environmental Assessment; Availability: Naval Air Warfare Center Weapons Division In China Lake, CA, 39991-39993 E8-15793 Issuance and Availability of Regulatory Guide 6.1, Revision 2, 39993-39994 E8-15787 E8-15788 E8-15794 Issuance of Regulatory Guides, 39994-39995 E8-15786 Tennessee Valley Authority; Watts Bar Nuclear Plant, Unit 2: Order, 39995-39996 E8-15796 Occupational Occupational Safety and Health Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 39988-39989 E8-15769 Postal Postal Regulatory Commission NOTICES Administrative Practice and Procedure, Postal Service; Correction, 39996-40000 E8-15785 Prisons Prisons Bureau RULES Inmate Work and Performance Pay Program: Reduction in Pay for Drug- and Alcohol-related Disciplinary Offenses, 39864-39866 E8-15855 Intensive Confinement Center Program, 39863-39864 E8-15784 SEC Securities and Exchange Commission RULES Commission Guidance and Amendment to the Rules Relating to Organization and Program Management, etc., 40144-40152 E8-15574 PROPOSED RULES References to Ratings of Nationally Recognized Statistical Ratings Organizations, 40124-40142 E8-15282 References to Ratings of Nationally Recognized Statistical Rating Organizations, 40088-40106 E8-15280 Security Ratings, 40106-40124 E8-15281 NOTICES Self-Regulatory Organizations;
Proposed Rule Changes: Chicago Board Options Exchange, Inc., LLC, 40000-40001 E8-15758 NASDAQ Stock Market LLC, 40002-40005 E8-15759 SBA Small Business Administration NOTICES MANUSCRIPT Disaster Declaration: Wisconsin, 40005 E8-15267 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 40005-40007 E8-15752 State State Department NOTICES Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008;
Determination Pursuant to Section 686; Waiver, 40007-40008 E8-15862 Exchange Visitor Program; Termination of Flight Training Programs, 40008 E8-15454 Substance Substance Abuse and Mental Health Services Administration NOTICES Meetings: Center for Substance Abuse Prevention National Advisory Council, 39977 E8-15756 Center for Substance Abuse Treatment National Advisory Council, 39977-39978 E8-15757 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Railroad Administration See National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 40008-40010 E8-15783 Treasury Treasury Department NOTICES Meetings: President's Advisory Council on Financial Literacy, 40013 E8-15852 Immigration U.S. Immigration and Customs Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 39978 E8-15846 Separate Parts In This Issue Part II Transportation Department, National Highway Traffic Safety Administration, 40016-40050 E8-15620 Part III Commerce Department, National Oceanic and Atmospheric Administration, 40052-40085 E8-15720 Part IV Securities and Exchange Commission, 40088-40142 E8-15280 E8-15281 E8-15282 Part V Securities and Exchange Commission, 40144-40152 E8-15574 Part VI Federal Trade Commission, 40154-40165 E8-15245 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 134 Friday, July 11, 2008 Rules and Regulations DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 11 RIN 1076-AE67 Law and Order on Indian Reservations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Final rule.
SUMMARY: This final rule amends the Bureau of Indian Affairs regulation governing the Courts of Indian Offenses (otherwise known as CFR Courts) and the Law and Order Code. CFR Courts administer justice where Indian tribes retain exclusive jurisdiction over Indians but where tribal courts have not been established to exercise that jurisdiction. This final rule updates the list of Indian tribes for which Courts of Indian Offenses are established and for which the law and order provisions of the regulations apply.
This final rule also clarifies jurisdictional limitations; adds offenses for drug abuse, abuse of psychotoxic substances, child abuse, prostitution, and family violence; and increases maximum penalties for various offenses. DATES: This rule is effective on August 11, 2008. FOR FURTHER INFORMATION CONTACT: Joseph Little, Office of Justice Services, Bureau of Indian Affairs, 1001 Indian School Road, NW., Albuquerque, NM 87104. Telephone:
(505)563-3833. SUPPLEMENTARY INFORMATION: I. Background II. Statutory Authority III. Discussion of Comments Received on Proposed Rule A. Civil Jurisdiction B. Appointment of Magistrates C. Jury Panel D. List of Courts of Indian Offenses E. Thirty-Day Comment Period F. Compliance with Executive Order 13175 IV. Procedural Requirements A. Regulatory Planning and Review (Executive Order 12866) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings Implication Assessment (Executive Order 12630) F. Federalism (Executive Order 13132) G. Civil Justice Reform (Executive Order 12988) H. Consultation With Indian Tribes (Executive Order 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Information Quality Act L. Effects on the Energy Supply (Executive Order 13211) I. Background This final rule amends 25 CFR part 11, the Bureau of Indian Affairs regulation governing the Courts of Indian Offenses (otherwise known as CFR Courts) and the Law and Order Code. CFR Courts administer justice where Indian tribes retain exclusive jurisdiction over Indians but where tribal courts have not been established to exercise that jurisdiction. Part 11 applies only to those tribes occupying the Indian country over which a Court of Indian Offense has jurisdiction. At any time, these tribes may adopt their own tribal court systems to replace the CFR courts by following the steps in 25 CFR 11.100(c) (which has not been affected by this final rule). The final rule updates the list of CFR courts. The final rule also addresses the need for additional offenses, which has become apparent as drug abuse and family violence have increasingly plagued Indian country, and the need for increased maximum penalty amounts. The final rule also makes several editorial changes to comply with the Plain Language Initiative, for example, by changing headings to question form. The Bureau of Indian Affairs published proposed revisions to 25 CFR part 11 on December 19, 2007 (72 FR 71835). II. Statutory Authority The authority to issue this amendment is vested in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C. 2 and 9, and 25 U.S.C. 13 which authorize appropriations for “Indian judges.” This rule is published in the exercise of the rulemaking authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs in the Departmental Manual at 209 DM 8. III. Discussion of Comments Received on Proposed Rule Three tribes submitted written statements during the 30-day comment period. One tribe submitted comments after expiration of the comment period; the Bureau entered these comments into the administrative record but, in accordance with Departmental policy, did not substantially rely on them in developing the final rule. Timely comments were submitted by: The Comanche Nation of Oklahoma; The Chickasaw Nation of Oklahoma; and the Gaming Commission of the Cheyenne and Arapaho Tribes of Oklahoma. The following discussion summarizes significant comments by these three tribes and the Bureau's responses. A. Civil Jurisdiction Several tribes objected to the changes in section 11.116 which they claimed created ambiguity concerning the courts' jurisdiction in civil matters. The first concern was the proposed rule's change from providing jurisdiction in cases in which “the defendant is an Indian” to cases in which “the claimant is an Indian.” The Bureau agrees that the current rule's language providing jurisdiction in those cases in which the defendant is an Indian should be retained. As such, section 11.116(a)(1) of the final rule reads: “The defendant is an Indian.” The second concern was the ambiguity as to jurisdiction over claims against non-Indian defendants and counter-defendants. In particular, one commenter stated that the proposed rule provision allowing jurisdiction only by stipulation of the parties unnecessarily diminished civil jurisdiction of the CFR Court. The Bureau agrees. Section 11.116 (a)(2) will be changed to read: “Other claims, including counterclaims, provided that at least one party is an Indian.” This language complies with Supreme Court rulings on tribal jurisdiction. B. Appointment of Magistrates Two tribes objected to changes in section 11.201(a) that call for “consultation” with the tribe or tribes before appointing a magistrate rather than seeking “confirmation by a majority vote of the tribal governing body.” The Bureau has considered this comment and is tabling this change. The final rule therefore does not include the proposed change to “consultation,” but instead retains current regulatory language requiring confirmation. C. Jury Panel One tribe stated that changing section 11.414(c) to increase the jury panel from 8 to 12 residents may result in an undue hardship for courts serving rural or sparsely populated areas. The Bureau agrees. The Indian Civil Rights Act of 1968 (25 U.S.C. 1302) requires jury trials of not less than six
(6)persons. The Bureau has determined that this is a reasonable standard for a court functioning in Indian country. Therefore, section 11.314 9(c) of the final rule reads, “[a] jury must consist of not less than 6 residents of the vicinity in which the trial is held, selected from a list of eligible jurors * * *” D. List of Courts of Indian Offenses The Comanche Nation specifically objected to section 11.100 deleting “(except Comanche Children's Court).” The Bureau did not intend to interfere with the operation of the Comanche Children's Court, and has re-inserted that language into the final rule. E. Thirty-Day Comment Period One tribe asserted that the thirty-day comment period was not sufficient and should be extended. The Bureau considered this request for extension and determined that the thirty-day comment period was sufficient. In making this determination, the Bureau considered the limited number of changes proposed, the limited number of potentially affected tribes, and the potential effect on those tribes. The Bureau also considered the fact that it received only one objection to the length of the comment period, and that the tribe that objected to the length of the comment period nevertheless provided comments on the proposed changes contained in the proposed rule. F. Compliance With Executive Order 13175 One tribe asserted that the proposed rule violated Executive Order 13175 because the rule affects tribes that use CFR Courts as their tribal courts. The Bureau examined whether the revisions would have substantial direct effects on one or more Indian tribes and determined that they would not. The Bureau focused on those tribes occupying the Indian country over which a Court of Indian Offense has jurisdiction, in examining whether the proposed changes would have substantial direct effects. The Bureau examined each regulatory change for its effects on these tribes and found that, generally, the regulatory changes were merely updates, which would not substantially affect caseloads, require additional outlays, or otherwise substantially and directly affect these tribes. The Bureau also examined the relationship between the Federal Government and these tribes and the distribution of power between the Federal Government and these tribes, and determined that there was no substantial direct effect. Finally, the proposed and final rules have no effect on the ability of tribes subject to part 11 (i.e., occupying the Indian country over which a Court of Indian Offense has jurisdiction) to enact and obtain Secretarial approval of enforceable ordinances. IV. Procedural Requirements A. Regulatory Planning and Review (Executive Order 12866) In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. OMB makes the final determination under Executive Order 12866.
(a)This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. The establishment of an average Court of Indian Offenses is estimated to cost less than $200,000 annually to operate. The cost associated with the operation of this court will be with the Bureau of Indian Affairs.
(b)This rule will not create inconsistencies with other agencies' actions. The Department of the Interior through the Bureau of Indian Affairs has the sole responsibility and authority to establish Courts of Indian Offenses on Indian reservations.
(c)This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. The establishment of Court of Indian Offenses will not affect any program rights of any Indian tribe. Its primary function will be to administer justice for misdemeanor offenses within Indian country. The court's criminal jurisdiction will be limited to criminal offenses provided in 25 CFR part 11 and the Law and Order Code of Indian tribes as applicable.
(d)This rule will not raise novel legal or policy issues. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in the statutes placing supervision of Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9, and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States Supreme Court recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in *United States* v. *Clapox,* 35 F. 575 (D. Ore. 1888). B. Regulatory Flexibility Act The Department of the Interior, Bureau of Indian Affairs, certifies that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). An initial Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required. The amendment to 25 CFR part 11.100(a) updates the list of Court of Indian Offenses with limited criminal jurisdiction over Indians within a limited geographical area of Indian country. Accordingly, there will be no impact on any small entities. C. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a)Does not have an annual effect on the economy of $100 million or more. The establishment of an average Court of Indian Offenses is estimated to cost less than $200,000 per court to operate annually. The cost associated with the operation of these courts will be with the Bureau of Indian Affairs.
(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This is a court established primarily for the administration of misdemeanor justice for Indians located within the boundaries of Indian country and will not have any cost or price impact on any other entities in the geographical region.
(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. These are courts established primarily for the administration of misdemeanor justice for Indians located within the boundaries of Indian country, and will not have an adverse impact on competition, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. D. Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ):
(a)This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. The establishment of a Court of Indian Offenses will not have jurisdiction to affect any rights of the small governments. Its primary function will be to administer justice for misdemeanor offenses within the boundaries of Indian country. Its jurisdiction will be limited to criminal offenses provided in 25 CFR part 11.
(b)This rule will not produce a Federal mandate of $100 million or greater in any year; i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. E. Takings Implication Assessment (Executive Order 12630) In accordance with Executive Order 12630, the rule does not have significant takings implication. A takings implication assessment is not required. The amendments to 25 CFR part 11 will establish Courts of Indian Offenses with limited criminal jurisdiction over Indians within a limited geographical area of Indian country. F. Federalism (Executive Order 13132) In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States judiciary recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in *United States* v. *Clapox,* 35 F. 575 (D. Ore. 1888). G. Civil Justice Reform (Executive Order 12988) In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The Solicitor analyzed and upheld the Department of the Interior's authority to establish Courts of Indian Offenses in a memorandum dated February 28, 1935. The Solicitor found that authority to rest principally in the statutes placing supervision of the Indians in the Secretary of the Interior, 25 U.S.C. 2 and 9; and 25 U.S.C. 13, which authorizes appropriations for “Indian judges.” The United States judiciary recognized the authority of the Secretary to promulgate regulations with respect to Courts of Indian Offenses in *United States* v. *Clapox* , 35 F. 575 (D. Ore. 1888). Part 11 also requires the establishment of an appeals court; hence, the judicial system defined in Executive Order 12988 will not normally be involved in this judicial process. H. Consultation With Indian Tribes (Executive Order 13175) Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. The amendment to 25 CFR part 11 does not automatically apply to all federally recognized tribes; part 11 applies only when the establishment of the provisional Court of Indian Offenses is necessary until that tribe establishes a tribal court to provide for a law and order code and judicial system within the exterior boundaries of its Indian reservation. The Department of the Interior establishes a provisional court, to fulfill its trust responsibility towards tribal governments and complies with the unique government-to-government relationship that exists between the Federal Government and Indian tribes. I. Paperwork Reduction Act This amendment to the regulation does not require information collection under the Paperwork Reduction Act. J. National Environmental Policy Act We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required. The establishment of a Court of Indian Offenses conveys personal jurisdiction over the criminal misdemeanor actions of Indians with the exterior boundaries of Indian country. K. Information Quality Act In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-544). L. Effects on the Energy Supply (Executive Order 13211) This rule does not have a significant effect on the nation's energy supply, distribution, or use as defined by Executive Order 13211. List of Subjects in 25 CFR Part 11 Courts, Indians—law, Law enforcement, Penalties. Dated: May 10, 2008. Carl J. Artman, Assistant Secretary—Indian Affairs. For the reasons set out in the preamble, the Bureau of Indian Affairs amends 25 CFR part 11 as set forth below. PART 11—COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE 1. The authority citation for 25 CFR part 11 continues to read as follows: Authority: 5 U.S.C. 301; R.S. 463; 25 U.S.C. 2; R.S. 465; 25 U.S.C. 9; 42 Stat. 208; 25 U.S.C. 13; 38 Stat. 586; 25 U.S.C. 200. 2. Revise the heading of part 11 to read as set forth above. 3. Revise subpart A to read as follows: Subpart A—Application; Jurisdiction Sec. 11.100 Where are Courts of Indian Offenses established? 11.102 What is the purpose of this part? 11.104 When does this part apply? 11.106 Who is an Indian for purposes of this part? 11.108 How are tribal ordinances affected by this part? 11.110 How are tribal customs affected by this part? 11.112 [Reserved] 11.114 What is the criminal jurisdiction of the Court of Indian Offenses? 11.116 What is the civil jurisdiction of a Court of Indian Offenses? 11.118 What are the jurisdictional limitations of the Court of Indian Offenses? Subpart A—Application; Jurisdiction § 11.100 Where are Courts of Indian Offenses established?
(a)Unless indicated otherwise in this title, these Courts of Indian Offenses are established and the regulations in this part apply to the Indian country (as defined in 18 U.S.C. 1151 and by Federal court precedent) occupied by the following tribes:
(1)Te-Moak Band of Western Shoshone Indians (Nevada);
(2)Ute Mountain Ute Tribe (Colorado);
(3)Tribes located in the former Oklahoma Territory (Oklahoma) that are listed in paragraph
(b)of this section;
(4)Tribes located in the former Indian Territory (Oklahoma) that are listed in paragraph
(c)of this section;
(5)Winnemucca Indian Tribe; and
(6)Santa Fe Indian School Property, including the Santa Fe Indian Health Hospital, and the Albuquerque Indian School Property (land held in trust for the 19 Pueblos of New Mexico).
(b)This part applies to the following tribes located in the former Oklahoma Territory (Oklahoma):
(1)Apache Tribe of Oklahoma;
(2)Caddo Nation of Oklahoma;
(3)Comanche Nation (except Comanche Children's Court);
(4)Delaware Nation;
(5)Fort Sill Apache Tribe of Oklahoma;
(6)Kiowa Tribe of Oklahoma;
(7)Otoe-Missouria Tribe of Oklahoma; and
(8)Wichita and Affiliated Tribes of Oklahoma.
(c)This part applies to the following tribes located in the former Indian Territory (Oklahoma):
(1)Choctaw Nation;
(2)Seminole Nation;
(3)Eastern Shawnee Tribe;
(4)Miami Tribe;
(5)Modoc Tribe;
(6)Ottawa Tribe;
(7)Peoria Tribe;
(8)Quapaw Tribe; and
(9)Wyandotte Nation. § 11.102 What is the purpose of this part? It is the purpose of the regulations in this part to provide adequate machinery for the administration of justice for Indian tribes in those areas of Indian country where tribes retain jurisdiction over Indians that is exclusive of State jurisdiction but where tribal courts have not been established to exercise that jurisdiction. § 11.104 When does this part apply?
(a)The regulations in this part continue to apply to each tribe listed in § 11.100 until either:
(1)BIA and the tribe enter into a contract or compact for the tribe to provide judicial services; or
(2)The tribe has put into effect a law-and-order code that establishes a court system and that meets the requirements of paragraph
(b)of this section.
(b)When a tribe adopts a legal code and establishes a judicial system, the tribe must notify the Assistant Secretary—Indian Affairs or his or her designee. The law-and-order code must be adopted by the tribe in accordance with its constitution and by-laws or other governing documents. § 11.106 Who is an Indian for purposes of this part? For the purposes of the enforcement of the regulations in this part, an Indian is defined as a person who is a member of an Indian tribe which is recognized by the Federal Government as eligible for services from the BIA, and any other individual who is an “Indian” for the purposes of 18 U.S.C. 1152-1153. § 11.108 How are tribal ordinances affected by this part? The governing body of each tribe occupying the Indian country over which a Court of Indian Offenses has jurisdiction may enact ordinances which, when approved by the Assistant Secretary—Indian Affairs or his or her designee:
(a)Are enforceable in the Court of Indian Offenses having jurisdiction over the Indian country occupied by that tribe; and
(b)Supersede any conflicting regulation in this part. § 11.110 How are tribal customs affected by this part? Each Court of Indian Offenses shall apply the customs of the tribe occupying the Indian country over which it has jurisdiction to the extent that they are consistent with the regulations of this part. § 11.112 [Reserved]. § 11.114 What is the criminal jurisdiction of the Court of Indian Offenses?
(a)Except as otherwise provided in this title, each Court of Indian Offenses has jurisdiction over any action by an Indian (hereafter referred to as person) that is made a criminal offense under this part and that occurred within the Indian country subject to the court's jurisdiction.
(b)No person may be prosecuted, tried or punished for any offense unless the complaint is filed within 5 years after the offense is committed. § 11.116 What is the civil jurisdiction of a Court of Indian Offenses?
(a)Except as otherwise provided in this title, each Court of Indian Offenses has jurisdiction over any civil action arising within the territorial jurisdiction of the court in which:
(1)The defendant is an Indian; or
(2)Other claims, provided at least one party is an Indian.
(b)Any civil action commenced in a Court of Indian Offenses is barred unless the complaint is filed within 3 years after the right of action first accrues. § 11.118 What are the jurisdictional limitations of the Court of Indian Offenses?
(a)A Court of Indian Offenses may exercise over a Federal or State official only the same jurisdiction that it could exercise if it were a tribal court. The jurisdiction of Courts of Indian Offenses does not extend to Federal or State employees acting within the scope of their employment.
(b)A Court of Indian Offenses may not adjudicate an election dispute, take jurisdiction over a suit against a tribe, or adjudicate any internal tribal government dispute, unless the relevant tribal governing body passes a resolution, ordinance, or referendum granting the court jurisdiction.
(c)In deciding who is a tribal official, BIA will give deference to a decision of the Court of Indian Offenses, acting as a tribal forum by resolution or ordinance of a tribal governing body under paragraph
(b)of this section.
(d)A tribe may not be sued in a Court of Indian Offenses unless its tribal governing body explicitly waives its tribal immunity by tribal resolution or ordinance. Subpart B—Courts of Indian Offenses; Personnel; Administration 3A. In § 11.200, revise the section heading and paragraph
(c)to read as follows: § 11.200 What is the composition of the Court of Indian Offenses?
(c)Appeals must be heard by a panel of magistrates who were not involved at the tribal/trial level. 4. In § 11.201, revise the section heading to read as follows: § 11.201 How are magistrates for the Court of Indian Offenses appointed? 5. In § 11.202, revise the section heading to read as follows: § 11.202 How is a magistrate of the Court of Indian Offenses removed? 6. In § 11.203, revise the section heading to read as follows: § 11.203 How are the clerks of the Court of Indian Offenses appointed and what are their duties? 7. In § 11.205, revise the section heading to read as follows: § 11.205 Are there standards for the appearance of attorneys and lay counselors? 8. In § 11.206, revise the section heading to read as follows: § 11.206 Is the Court of Indian Offenses a court of record? 9. In § 11.207, revise the section heading to read as follows: § 11.207 What are the responsibilities of Bureau of Indian Affairs employees? 10. In § 11.208, revise the section heading to read as follows: § 11.208 May Individual Indian Money accounts be used for payment of judgments? 11. In § 11.209, revise the section heading to read as follows: § 11.209 How does the Court of Indian Offenses dispose of fines? Subpart C—Criminal Procedure 12. In § 11.314, redesignate paragraphs
(c)through
(e)as paragraphs
(d)through (f), revise paragraphs
(a)and (b), and add a new paragraph (c), to read as follows: § 11.314 Jury trials.
(a)A defendant has a right, upon demand, to a jury trial in any criminal case:
(1)That is punishable by a maximum sentence of one year incarceration; or
(2)In which the prosecutor informs the court before the case comes to trial that a jail sentence will be sought.
(b)If the prosecutor informs the court that no sentence of incarceration will be sought, the court may not impose a sentence of incarceration for the offense.
(c)A jury must consist of not less than six residents of the vicinity in which trial is held, selected from a list of eligible jurors prepared each year by the court.
(1)An eligible juror must:
(i)Be at least 18 years of age;
(ii)Not have been convicted of a felony; and
(iii)Be otherwise qualified according to standards established by the Court of Indian Offenses under its general rulemaking authority.
(2)Any party may challenge without cause a maximum of three members of the jury panel chosen under this section. 13. In § 11.315, revise paragraph
(a)to read as follows: § 11.315 Sentencing.
(a)Any person who has been convicted in a Court of Indian Offenses of a criminal offense under the regulations of this part may be sentenced to one or a combination of the following penalties:
(1)Imprisonment for a period up to the maximum permitted by the section defining the offense, but in no case for longer than one year; and
(2)A fine in an amount up to the maximum permitted by the section defining the offense, but in no case greater than $5,000. Subpart D—Criminal Offenses 14. Revise § 11.450 to read as follows: § 11.450 Maximum fines and sentences of imprisonment. A person convicted of an offense under the regulations in this part may be sentenced as follows: Type of offense Maximum allowable sentence
(a)Misdemeanor Up to 1 year in prison, or a fine of up to $5,000, or both.
(b)Petty misdemeanor Up to 6 months in prison, or a fine of up to $2,500, or both.
(c)Violation Up to 3 months in prison, or a fine of up to $1,000, or both. 15. Add new §§ 11.451 through 11.454 to read as follows: § 11.451 Abuse of psychotoxic chemical solvents.
(a)It is unlawful to:
(1)Intentionally smell or inhale the fumes of any psychotoxic chemical solvent or possess, purchase, or attempt to possess or purchase any psychotoxic chemical solvent, for the purpose of causing intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system; or
(2)Sell, give away, dispense, or distribute, or offer to sell, give away, dispense, or distribute, any psychotoxic chemical solvent knowing or believing that the purchaser or another person intends to use the solvent in violation of this section.
(b)This section does not apply to inhalation of anesthesia for medical or dental purposes.
(c)As used in this section, “psychotoxic chemical solvent” means any glue, gasoline, paint, hair spray, Lysol, or other substance containing one or more of the following chemical compounds:
(1)Acetone and acetate;
(2)Benzene;
(3)Butyl-alcohol;
(4)Methyl ethyl;
(6)Peptone;
(7)Pentachlorophenol;
(8)Petroleum ether; or
(9)Any other chemical substance the inhalation of whose fumes or vapors can cause intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system.
(d)The statement listing the contents of a substance packaged in a container by the manufacturer or producer thereof is rebuttable proof of the contents of the substance without further expert testimony if it reasonably appears that the substance in the container is the same substance placed therein by the manufacturer or producer.
(e)Abuse of psychotoxic chemical solvents, as defined in this section, is punishable as a petty misdemeanor, and the court may order any person using psychotoxic chemical solvents as described in paragraph
(a)of this section to be committed to a facility for treatment for up to 6 months.
(f)Psychotoxic chemical solvents kept or used in violation of this section are declared contraband. Upon proof of a violation, these solvents must be forfeited to the Federal government by order of the court, following public notice and an opportunity for any person claiming an interest in the solvents to be heard. § 11.452 Possession of a controlled substance.
(a)It is unlawful for a person to knowingly or intentionally possess any controlled substance listed in 21 CFR Part 1308, as amended, unless:
(1)The Controlled Substances Act or Drug Enforcement Agency regulations specifically authorizes possession of the substance;
(2)The substance or preparation is excluded or exempted by 21 CFR 1308.21 through 1308.35, as amended; or
(3)The provisions of 42 U.S.C. 1996a (regarding traditional Indian religious use of peyote) apply.
(b)Violations of paragraph
(a)of this section are punishable as a misdemeanor.
(c)Any controlled substance involved in violation of this section is declared to be contraband. Upon proof of a violation of this section, the controlled substance must be forfeited to the Federal Government by order of the court, after public notice and an opportunity for any person claiming an interest in the substance to be heard.
(d)Any personal property used to transport, conceal, manufacture, cultivate, or distribute a controlled substance in violation of this section is subject to forfeiture to the Federal Government by order of the court upon proof of this use, following public notice and opportunity for any person claiming an interest in the property to be heard. § 11.453 Prostitution or solicitation. A person who commits prostitution or solicitation or who knowingly keeps, maintains, rents, or leases, any house, room, tent, or other place for the purpose of prostitution is guilty of a misdemeanor. § 11.454 Domestic violence.
(a)A person who commits domestic violence by inflicting physical harm, bodily injury, or sexual assault, or inflicting the fear of imminent physical harm, bodily injury, or sexual assault on a family member, is guilty of a misdemeanor.
(b)For purposes of this section, a family member is any of the following:
(1)A spouse;
(2)A former spouse;
(3)A person related by blood;
(4)A person related by existing or prior marriage;
(5)A person who resides or resided with the defendant;
(6)A person with whom the defendant has a child in common; or
(7)A person with whom the defendant is or was in a dating or intimate relationship. 16. Revise § 11.500 to read as follows. § 11.500 Law applicable to civil actions.
(a)In all civil cases, the Magistrate of a Court of Indian Offenses shall have discretion to apply:
(1)Any laws of the United States that may be applicable;
(2)Any authorized regulations contained in the Code of Federal Regulations; and
(3)Any laws or customs of the tribe occupying the area of Indian country over which the court has jurisdiction that are not prohibited by Federal laws.
(b)The delineation in paragraph
(a)of this section does not establish a hierarchy relative to the applicability of specific law in specific cases.
(c)Where any doubt arises as to the customs of the tribe, the court may request the advice of counselors familiar with those customs.
(d)Any matters that are not covered by the laws or customs of the tribe, or by applicable Federal laws and regulations, may be decided by the Court of Indian Offenses according to the laws of the State in which the matter in dispute lies. 17. Add a new subpart L to read as follows: Subpart L—Child Protection and Domestic Violence Procedures Sec. 11.1200 Definitions. 11.1202 How to petition for an order of protection. 11.1204 Obtaining an emergency order of protection. 11.1206 Obtaining a regular (non-emergency) order of protection. 11.1208 Service of the protection order. 11.1210 Duration and renewal of a regular protection order. 11.1212 Consequences of disobedience or interference. 11.1214 Relationship of this part to other remedies. Subpart L—Child Protection and Domestic Violence Procedures § 11.1200 Definitions. For purposes of this subpart: *Domestic violence* means to inflict physical harm, bodily injury, or sexual assault, or the fear of imminent physical harm, bodily injury, or sexual assault on a family member. *Family member* means any of the following:
(1)A spouse;
(2)A former spouse;
(3)A person related by blood;
(4)A person related by existing or prior marriage;
(5)A person who resides or resided with the defendant;
(6)A person with whom the defendant has a child in common; or
(7)A person with whom the defendant is or was in a dating or intimate relationship. *Parent* means persons who have a child in common, regardless of whether they have been married or have lived together at any time. § 11.1202 How to petition for an order of protection. A victim of domestic violence, or the parent, guardian of a victim, or a concerned adult may petition the court under this subpart for an order of protection.
(a)The petition must be made under oath or accompanied by a sworn affidavit setting out specific facts describing the act of domestic violence.
(b)The petitioner is not required to file for annulment, separation, or divorce in order to obtain an order of protection. However, the petition should state whether any legal action is pending between the petitioner and the respondent.
(c)The Court may develop simplified petition forms with instructions for completion and make them available to petitioners not represented by counsel. Law enforcement agencies may keep the forms on hand and make them available upon request to victims of domestic violence. § 11.1204 Obtaining an emergency order of protection.
(a)When a victim files a petition for an order of protection under § 11.202(a), the court may immediately grant an ex parte emergency order of protection if the petition clearly shows that an act of domestic violence has occurred. The order must meet the content requirements of § 11.206
(a)and (b).
(b)If the court does not immediately grant an emergency order of protection under paragraph
(a)of this section, the court must either:
(1)Within 72 hours after the victim files a petition, serve notice to appear upon both parties and hold a hearing on the petition for order of protection; or
(2)If a notice of hearing cannot be served within 72 hours, issue an emergency order of protection.
(c)If the court issues an ex parte emergency order of protection under paragraph
(a)of this section, it must within 10 days hold a hearing on the question of continuing the order. If notice of hearing cannot be served within 10 days:
(1)The emergency order of protection is automatically extended for 10 days; and
(2)If after the 10-day extension, notice to appear cannot be served, the emergency order of protection expires.
(d)If the court issues an ex parte emergency order of protection under paragraph (b)(2) of this section, it must cause the order to be served on the person alleged to have committed a family violence act and seek to hold a hearing as soon as possible. If a hearing cannot be held within 10 days, the petitioner may ask the court to renew the emergency protection order. § 11.1206 Obtaining a regular (non-emergency) order of protection. Following a hearing and finding that an act of domestic violence occurred, the court may issue an order of protection. The order must meet the requirements of paragraph
(a)of this section and may meet the requirements of paragraph
(b)of this section. Either party may request a review hearing to amend or vacate the order of protection.
(a)The order of protection must do all of the following:
(1)Specifically describe in clear language the behavior the court has ordered he or she do or refrain from doing;
(2)Give notice that violation of any provision of the order of protection constitutes contempt of court and may result in a fine or imprisonment, or both; and
(3)Indicate whether the order of protection supersedes or alters prior orders pertaining to matters between the parties.
(b)The order of protection may do any of the following:
(1)Order the person who committed the act of domestic violence to refrain from acts or threats of violence against the petitioner or any other family member;
(2)Order that the person who committed the act of domestic violence be removed from the home of the petitioner;
(3)Grant sole possession of the residence or household to the petitioner during the period the order of protection is effective, or order the person who has committed an act of domestic violence to provide temporary suitable alternative housing for the petitioner and other family members to whom the respondent owes a legal obligation of support;
(4)Award temporary custody of any children involved when appropriate and provide for visitation rights, child support, and temporary support for the petitioner on a basis which gives primary consideration to the safety of the petitioner and other household members;
(5)Order the person who is found to have committed an act of domestic violence not to initiate contact with the petitioner;
(6)Restrain the parties from transferring, concealing, encumbering, or otherwise disposing of one another's property or the joint property of the parties except in the usual course of business or for the necessities of life, and order the parties to account to the court for all such transferring, encumbrances, and expenditures made after the order is served or communicated; and
(7)Order other injunctive relief as the court deems necessary for the protection of the petitioner, including orders to law enforcement agencies as provided by this subpart. § 11.1208 Service of the protection order. When an order of protection is granted under this subpart:
(a)The petitioner must file it with the clerk of the court;
(b)The clerk of the court must send a copy to a law enforcement agency with jurisdiction over the area in which the court is located;
(c)The order must be personally served upon the respondent, unless the respondent or his or her attorney was present at the time the order was issued; and
(d)If the court finds the petitioner unable to pay court costs, the order will be served without cost to the petitioner. § 11.1210 Duration and renewal of a regular protection order. An order of protection granted by the court:
(a)Is effective for a fixed period of time, which is up to a maximum of 6 months; and
(b)May be extended for good cause upon motion of the petitioner for an additional period of up to 6 months each time a petition is presented. A petitioner may request as many extensions as necessary provided that the court determines that good cause exists. § 11.1212 Consequences of disobedience or interference. Any willful disobedience or interference with any court order constitutes contempt of court which may result in a fine or imprisonment, or both, in accordance with this part. § 11.1214 Relationship of this subpart to other remedies. The remedies provided in this subpart are in addition to the other civil or criminal remedies available to the petitioner. [FR Doc. E8-15599 Filed 7-10-08; 8:45 am] BILLING CODE 4310-4J-P DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Part 524 [BOP-1141-F] RIN 1120-AB39 Intensive Confinement Center Program AGENCY: Federal Bureau of Prisons. ACTION: Final rule. SUMMARY: The Bureau of Prisons (Bureau) removes current rules on the intensive confinement center program (ICC). The ICC is a specialized program for non-violent offenders combining features of a military boot camp with traditional Bureau correctional values. The Bureau will no longer be offering the ICC program (also known as Shock Incarceration or Boot Camp) to inmates as a program option. This decision was made as part of an overall strategy to eliminate programs that do not reduce recidivism. DATES: This rule is effective on August 11, 2008. FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone
(202)307-2105. SUPPLEMENTARY INFORMATION: Through this rulemaking, the Bureau seeks to be clear to inmates and the public regarding the termination of the ICC program. A proposed rule on this subject was published in the **Federal Register** on November 2, 2006 (71 FR 64504). We received three comments. The issues raised by the commenters are addressed below. One commenter, a former inmate, recounted his positive experience in an ICC program in a Bureau facility, and suggested that such positive experiences should be sufficient to continue the ICC program. Although this inmate is to be commended for taking full advantage of the opportunities offered through the ICC program, we note that it is unfortunate that his experience was not repeated often enough to justify the extra costs implicated in the ICC program. As we stated in the preamble to the proposed rule, despite anecdotal successes, research has found no significant difference in recidivism rates between inmates who complete boot camp programs and similar offenders who serve their sentences in traditional institutions. Moreover, the costs associated with maintaining the federal boot camp programs exceed the costs of operating ordinary minimum security camps, as a result of
(1)the staff resources necessary to maintain the intensive core programming that make up the “shock incarceration” or “intensive confinement” experience, and
(2)the high costs of housing offenders for extended periods of time in Community Corrections Centers, where the per capita costs are higher than those of housing offenders in minimum security camps. While there are some cost savings due to the early release of offenders who successfully complete the program, these savings are minimal compared to the additional costs of operating the program, which create a net increased cost to the agency of more than $1 million per year. The remaining two commenters expressed the idea that “Congress clearly intends for the BOP to run a shock incarceration program; BOP merely has the discretion to decide which inmates it places therein. No logical reading of section 4046 implies that the discretionary `may' in subsection
(a)refers to giving BOP discretion as to offering the shock incarceration program.” Several courts that have ruled on this issue since the discontinuance of the ICC program have found that 18 U.S.C. 4046 does *not* require the Bureau to operate a shock incarceration program—it merely *authorizes* the Bureau to grant certain benefits to those covered by the statute. *Palomino* v. *Federal Bureau of Prisons,* 408 F. Supp.2d 282 (S.D. Tex. 2005); *Roman* v. *LaManna,* C/A 8:05-2806-MBS, 2006 WL 2370319 (D.S.C. Aug. 15, 2006); *Serrato* v. *Clark,* C 05-03416 CRB, 2005 WL 3481442 (N.D. Cal. Dec. 19, 2005); *U.S.* v. *McLean,* CR 03-30066-AA, 2005 WL 2371990 (D. Ore. Sept. 27, 2005). Indeed, the Bureau has always had the authority to operate a program like the ICC, but prior to passage of 4046 could not have offered the sentence reduction incentive. The commenters also remarked that Congress appropriated funds for the operation of the ICC program. However, regarding appropriations, Congress has *never* specifically appropriated funds for the ICC program, i.e., there was and is no line item appropriation. The ICC was merely considered as one of a variety of programs in the Bureau's overall budget needs. For the aforementioned reasons, we now finalize the removal of the regulations in Subpart D of 28 CFR part 524. Executive Order 12866 This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review”, section 1(b), Principles of Regulation. The Director, Bureau of Prisons has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget. Executive Order 13132 This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications for which we would prepare a Federalism Assessment. Regulatory Flexibility Act The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By approving it, the Director certifies that it will not have a significant economic impact upon a substantial number of small entities because: this rule is about the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds. Unfunded Mandates Reform Act of 1995 This rule will not cause State, local and tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. We do not need to take action under the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 28 CFR Part 524 Prisoners. Harley G. Lappin, Director, Bureau of Prisons. Under rulemaking authority vested in the Attorney General in 5 U.S.C. 552(a) and delegated to the Director, Bureau of Prisons, we amend 28 CFR part 524 as set forth below. SUBCHAPTER B—INMATE ADMISSION, CLASSIFICATION, AND TRANSFER PART 524—CLASSIFICATION OF INMATES 1. The authority citation for part 524 continues to read as follows: Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624, 4001, 4042, 4046, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 21 U.S.C. 848; 28 U.S.C. 509, 510. Subpart D—[Removed] 2. Subpart D—Intensive Confinement Center Program, consisting of §§ 524.30 through 524.33, is removed and reserved. [FR Doc. E8-15784 Filed 7-10-08; 8:45 am] BILLING CODE 4410-05-P DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Part 545 [BOP Docket No. BOP 1132-F] RIN 1120-AB33 Inmate Work and Performance Pay Program: Reduction in Pay for Drug- and Alcohol-Related Disciplinary Offenses AGENCY: Bureau of Prisons, Justice. ACTION: Final rule. SUMMARY: In this document, the Bureau of Prisons (Bureau) amends regulations on inmate work and performance pay to require that inmates receiving performance pay who are found through the disciplinary process (found in 28 CFR part 541) to have committed a level 100 or 200 series drug-or alcohol-related prohibited act will automatically have their performance pay reduced to maintenance pay level and will be removed from any assigned work detail outside the secure perimeter of the institution. DATES: This rule is effective August 11, 2008. FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone
(202)307-2105. SUPPLEMENTARY INFORMATION: In this document, the Bureau amends regulations on inmate work and performance pay to require that inmates receiving performance pay who are found through the disciplinary process (found in 28 CFR part 541) to have committed a level 100 or 200 series drug-or alcohol-related prohibited act will automatically have their performance pay reduced to maintenance pay level and will be removed from any assigned work detail outside the secure perimeter of the institution. We published this as a proposed rule on November 2, 2006 (71 FR 64505). We received three comments, which we address below. The first commenter questioned whether “imposing a financial penalty on the prisoner saddled with recognized disabilities like drug addiction and alcoholism * * * will have the benefit of strengthening ongoing efforts to target an [sic] eliminate the introduction of drugs or alcohol into Bureau institutions.” This commenter is suggesting that the Bureau ease repercussions of committing a prohibited act related to drugs or alcohol. As the Bureau stated in its preamble to the proposed regulation, the additional financial penalty will serve to deter recurrence of drug- and alcohol-related prohibited acts. Increasing the potential repercussions of committing new prohibited acts will discourage inmates from committing them. The first commenter also stated that “prisoners suffering from drug addiction and/or alcoholism, absent effective and continuing treatment availability, will find themselves forced into unauthorized and criminal behaviors in order to feed their untreated disabilities.” One of the Bureau's many goals is to encourage a sense of accountability among inmates. This regulation will help to encourage inmate responsibility by actively deterring the commission of drug- and alcohol-related prohibited acts. Further, the Bureau offers several drug/alcohol treatment programs for qualifying inmates, which should also help to relieve “untreated disabilities” of such inmates. The first commenter also suggested that, instead of the proposed rule, a “better course appears to be requiring prisoners found to have committed a 100 or 200 series drug or alcohol related prohibited act to attend and successfully complete a drug abuse education course provided by 28 CFR 550.54.” However, under current § 550.54(b), inmates enrolled in a drug abuse education course who fail to meet the requirements of the course may be held at the lowest pay grade. Further, inmates in a residential drug abuse treatment program may be expelled, immediately and without warning, if found by a DHO to have used or possessed alcohol or drugs, or committed a 100 level prohibited act, under current 28 CFR 550.56(d). The second commenter asked whether the rule would apply retroactively. The answer to this question is that it will not apply retroactively to affect inmates who committed drug- and alcohol-related prohibited acts prior to the effective date of the regulation. After the effective date of the regulation, any inmate who commits a qualifying offense will have their pay reduced according to the regulation. The second commenter also asked whether the reduction in pay consequence would be indefinite. Under the Bureau's policy guidance to staff, which will be issued simultaneously with this final rule, sanctions for performance pay recipients will remain in effect for one year from the date the inmate was found to have committed the prohibited act. We have altered the regulation to add this time limit. The third commenter suggested that the rule apply not only to performance pay inmates but also to those inmates receiving UNICOR pay. Although the Bureau agrees with the commenter, this regulation relates only to inmates receiving performance pay, and as such, will continue to read as proposed. However, the Bureau is currently revising its policy guidance on UNICOR pay to clarify that UNICOR inmates found through the disciplinary process to have committed a level 100 or 200 series drug-or alcohol-related prohibited act will automatically have their pay reduced to a level 4 pay-grade, which is the equivalent of maintenance pay for performance pay inmates. Further, the third commenter was concerned that the proposed rule did not “place a timetable on the reduction in the inmate's pay grade * * * [the reduction in pay] could be indefinite.” We agree and have added the following language: “This reduction to maintenance pay level will ordinarily remain in effect for one year, unless otherwise authorized by the Warden.” For the foregoing reasons, we now finalize, with minor changes, the proposed rule published on November 2, 2006 (71 FR 64505). Executive Order 12866 This rule falls within a category of actions that the Office of Management and Budget
(OMB)has determined to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was reviewed by OMB. The Bureau has assessed the costs and benefits of this rule as required by Executive Order 12866 Section 1(b)(6) and has made a reasoned determination that the benefits of this rule justify its costs. This rule will have the benefit of strengthening ongoing efforts to target and eliminate the use and/or introduction of drugs or alcohol into Bureau institutions. There will be no new costs associated with this rulemaking. Executive Order 13132 This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Regulatory Flexibility Act The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 28 CFR Part 545 Prisoners. Harley G. Lappin, Director, Bureau of Prisons. Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, we amend 28 CFR part 545 as set forth below. SUBCHAPTER C—INSTITUTIONAL MANAGEMENT PART 545—WORK AND COMPENSATION 1. Amend the authority citation for 28 CFR part 545 continues to read as follows: Authority: 5 U.S.C. 301; 18 U.S.C. 3013, 3571, 3572, 3621, 3622, 3624, 3663, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 4126, 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510. 2. In § 545.25, add paragraph
(e)to read as follows: § 545.25 Eligibility for performance pay.
(e)Inmates receiving performance pay who are found through the disciplinary process (part 541 of this subchapter) to have committed a level 100 or 200 series drug- or alcohol-related prohibited act will automatically have their performance pay reduced to maintenance pay level and will be removed from any assigned work detail outside the secure perimeter of the institution. This reduction to maintenance pay level, and removal from assigned work detail outside the secure perimeter of the institution, will ordinarily remain in effect for one year, unless otherwise authorized by the Warden. [FR Doc. E8-15855 Filed 7-10-08; 8:45 am] BILLING CODE 4410-05-P EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 29 CFR Part 1615 RIN 3046-AA82 Enforcement of Nondiscrimination on the Basis of Disability in Programs or Activities Conducted by the Equal Employment Opportunity Commission and Accessibility of Commission Electronic and Information Technology AGENCY: Equal Employment Opportunity Commission. ACTION: Final rule. SUMMARY: The Equal Employment Opportunity Commission (EEOC or Commission) is publishing this final rule to amend its regulation to establish that all complaints under section 508 of the Rehabilitation Act of 1973, as amended (section 508), whether filed by members of the public or EEOC employees, will be processed under the procedures for section 504 public complaints. This final rule also updates the terminology used to describe how EEOC enforces section 504 of the Rehabilitation Act with respect to its own programs or activities. Finally, the final rule updates or eliminates certain sections of this regulation that are no longer relevant. DATES: Effective August 11, 2008. FOR FURTHER INFORMATION CONTACT: Carol R. Miaskoff or Kerry E. Leibig, Office of Legal Counsel, U.S. Equal Employment Opportunity Commission at
(202)663-4638 (voice),
(202)663-7026
(TTY)(This is not a toll-free telephone number.) This document is also available in the following formats: Large print, Braille, audio tape, and electronic file on computer disk. Requests for this document in an alternative format should be made to the Office of Communications and Legislative Affairs at
(202)663-4191 (voice) or
(202)663-4494
(TTY)or to the Publications Information Center at 1-800-669-3362. SUPPLEMENTARY INFORMATION: Section 508 of the Rehabilitation Act provides that each federal agency must ensure that the electronic and information technology it develops, procures, maintains, or uses is accessible to individuals with disabilities who are Federal employees or applicants, or members of the public seeking information or services from the agency. Section 508 authorizes individuals to file administrative complaints and civil actions limited to the alleged failure to procure accessible technology. In a Notice of Proposed Rulemaking (NPRM), the EEOC proposed amendments to its regulations at 29 CFR part 1615 to address the requirements of section 508 and to update terminology and eliminate certain sections that are no longer relevant. *See* 73 Fed. Reg. 9065 (Feb. 19, 2008). The Commission received no public comments in response to the NPRM and therefore has made no changes to the final rule. Regulatory Procedures Executive Order 12866 In promulgating this rulemaking, the Commission has adhered to the regulatory philosophy and applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. As indicated in the Semi-Annual Regulatory Agenda for Fall 2007, this regulation is not a significant regulation within the meaning of the Executive Order. Regulatory Flexibility Act The Commission certifies under 5 U.S.C. Sec. 605(b), enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not have a significant economic impact on a substantial number of small entities, because it applies exclusively to a federal agency and individuals accessing the services of a Federal agency. For this reason, a regulatory flexibility analysis is not required. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the Unfunded Mandates Reform Act of 1995. Paperwork Reduction Act This regulation contains no information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). List of Subjects in 29 CFR Part 1615 Administrative practice and procedure, Civil rights, Equal employment opportunity, Federal buildings and facilities, Individuals with disabilities. For the reasons set forth in the preamble, the EEOC amends 29 CFR part 1615 as follows: PART 1615—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND IN ACCESSIBILITY OF COMMISSION ELECTRONIC AND INFORMATION TECHNOLOGY 1. Revise the authority citation for 29 CFR part 1615 to read as follows: Authority: 29 U.S.C. 794 and 29 U.S.C. 794d(f)(2). 2. Part 1615 is amended as follows: A. By revising the heading to read as set forth above. B. By removing the term “handicap” wherever it appears and adding, in its place, the term “disability”. C. By removing the term “handicaps” wherever it appears and adding, in its place, the term “disabilities”. D. By removing the term “nonhandicapped persons” wherever it appears and adding, in its place, the term “individuals without disabilities”. E. By removing the term “Chairman” wherever it appears and adding, in its place, the term “Chair”. F. By removing the term “EEO Director” wherever it appears and adding, in its place, the term “Director of OEO”. 3. Section 1615.101 is amended by redesignating the current paragraph as paragraph
(a)and adding a new paragraph
(b)to read as follows: § 1615.101 Purpose.
(b)The purpose of this part is also to effectuate section 508 of the Rehabilitation Act, which requires that when Federal departments and agencies develop, procure, maintain, or use electronic and information technology, they shall ensure accessibility by individuals with disabilities who are Federal employees or applicants, or members of the public. 4. Section 1615.102 is revised to read as follows: § 1615.102 Application. This part applies to all programs or activities conducted by the Commission and to its development, procurement, maintenance, and use of electronic and information technology. 5. Section 1615.103 is amended as follows: A. The definition of “Complete complaint” is revised. B. A definition of “Electronic and information technology” is added. C. The definition heading “Individual with handicaps” is removed and “Individual with a disability” is added in its place. D. The definition “Qualified individual with a handicap” is removed. E. A definition of “Qualified individual with a disability” is added. F. A definition of “Section 508” is added. The revisions and additions read as follows: § 1615.103 Definitions. *Complete complaint* means a written statement that contains the complainant's name and address and describes the Commission's actions in sufficient detail to inform the Commission of the nature and date of the alleged violation of section 504 or section 508. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination. *Electronic and Information technology.* Includes information technology and any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion, or duplication of data or information. The term electronic and information technology includes, but is not limited to, telecommunications products (such as telephones), information kiosks and transaction machines, World Wide Web sites, multimedia, and office equipment such as copiers and fax machines. The term does not include any equipment that contains embedded information technology that is used as an integral part of the product, but the principal function of which is not the acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. For example, HVAC (heating, ventilation, and air conditioning) equipment such as thermostats or temperature control devices, and medical equipment where information technology is integral to its operation, are not information technology. *Qualified individual with a disability* means:
(1)With respect to any Commission program or activity (except employment), an individual with a disability who, with or without modifications or aids required by this part, meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.
(2)With respect to employment, a qualified individual with a disability as defined in 29 CFR 1630.2(m), which is made applicable to this part by § 1615.140. *Section 508* means section 508 of the Rehabilitation Act of 1973, Pub. L. 93-112, Title V, § 508, as added Pub. L. 99-506, Title VI, § 603(a), Oct. 21, 1986, 100 Stat. 1830, and amended Pub. L. 100-630, Title II, § 206(f), Nov. 7, 1988, 102 Stat. 3312; Pub. L. 102-569, Title V, § 509(a), Oct. 29, 1992, 106 Stat. 4430; Pub. L. 105-220, Title IV, § 408(b), Aug. 7, 1998, 112 Stat. 1203. § 1615.110 [Removed] 6. Section 1615.110 is removed and reserved. 7. Section 1615.135 is added to read as follows: § 1615.135 Electronic and information technology requirements.
(a)Development, procurement, maintenance, or use of electronic and information technology.—When developing, procuring, maintaining, or using electronic and information technology, the Commission shall ensure, unless an undue burden would be imposed on it, that the electronic and information technology allows, regardless of the type of medium of the technology—
(1)Individuals with disabilities who are Commission employees to have access to and use of information and data that is comparable to the access to and use of the information and data by Commission employees who are not individuals with disabilities; and
(2)Individuals with disabilities who are members of the public seeking information or services from the Commission to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.
(b)Alternative means of access when undue burden is imposed.—When development, procurement, maintenance, or use of electronic and information technology that meets the standards published by the Architectural and Transportation Barriers Compliance Board at 36 CFR part 1194 would impose an undue burden, the Commission shall provide individuals with disabilities covered by this section with the information and data involved by an alternative means of access that allows the individual to use the information and data. 8. Section 1615.140 is revised to read as follows: § 1615.140 Employment. No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any program or activity conducted by the Commission. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by this Commission in 29 CFR part 1614, shall apply to employment in federally conducted programs or activities. As noted in 29 CFR 1614.203(b), the standards used to determine whether section 501 of the Rehabilitation Act has been violated in a complaint alleging non-affirmative action employment discrimination under part 1614 shall be the standards applied under Title I and Title V (sections 501 through 504 and 510) of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 12201) as such sections relate to employment. These standards are set forth in the Commission's ADA regulations at 29 CFR part 1630. If a section 501 complaint is filed against the Commission in the part 1614 process and it is found to include a separate section 508 claim, the part 1614 process will be used to process the section 501 claim. The section 508 claim will be processed separately in accordance with the procedures set forth at § 1615.170. § 1615.150 [Amended] 9. Section 1615.150(c) and
(d)are removed. 10. Section 1615.170 is amended as follows: A. Revise paragraphs (a), (b), and (c). B. Revise the first sentences of paragraphs (d)(1) and (d)(2). C. Revise the third and fourth sentences of paragraph (i). D. Revise paragraph (j). E. Revise the first sentence of paragraph (k). F. Add a new paragraph (n). The revisions and additions read as follows: § 1615.170 Compliance procedures.
(a)Except as provided in paragraph
(b)of this section, this section applies to all allegations of discrimination on the basis of disability in programs or activities conducted by the Commission in violation of section 504. This section also applies to all complaints alleging a violation of the agency's responsibility to procure electronic and information technology under section 508 whether filed by members of the public or EEOC employees or applicants.
(b)The Commission shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by EEOC in 29 CFR part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791). With regard to employee claims concerning agency procurements made in violation of section 508, the procedures set out in paragraphs
(d)through
(m)of this section shall be used.
(c)Responsibility for implementation and operation of this section shall be vested in the Director, Office of Equal Opportunity (Director of OEO).
(d)* * *
(1)* * * Any person who believes that he or she has been subjected to discrimination prohibited by this part or that the agency's procurement of electronic and information technology has violated section 508, or authorized representative of such person, may file a complaint with the Director of OEO. * * *
(2)* * * Complaints shall be filed with the Director of OEO within one hundred and eighty calendar days of the alleged acts of discrimination. * * *
(i)* * * An appeal shall be deemed filed on the date it is postmarked, or, in the absence of a postmark, on the date it is received by the Chair at EEOC headquarters. It should be clearly marked “Appeal of Section 504 decision” or “Appeal of Section 508 decision” and should contain specific objections explaining why the person believes the initial decision was factually or legally wrong. * * *
(j)Timely appeals shall be decided by the Chair of the Commission unless the Commission determines that an appeal raises a policy issue which should be addressed by the full Commission.
(1)The Chair will draft a decision within 30 days of receipt of an appeal and circulate it to the Commission.
(2)If a Commissioner believes an appeal raises a policy issue that should be addressed by the full Commission, he or she shall so inform the Chair by notice in writing within ten calendar days of the circulation of the draft decision on appeal.
(3)If the Chair does not receive such written notice, the decision on appeal shall be issued.
(4)If the Chair receives written notice as described in subparagraph (2), the Commission shall resolve the appeal through a vote.
(k)The Commission shall notify the complainant of the results of the appeal within ninety calendar days of the receipt of the appeal from the complainant. * * *
(n)Civil actions. The remedies, procedures, and rights set forth in sections 505(a)(2) and 505(b) of the Rehabilitation Act, 29 U.S.C. 794a(a)(2) and 794a(b) shall be the remedies, procedures, and rights available to any individual with a disability filing a complaint under this section. Dated: July 2, 2008. Naomi C. Earp, Chair. [FR Doc. E8-15764 Filed 7-10-08; 8:45 am] BILLING CODE 6570-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Nos. USCG-2008-0372 and USCG-2008-0301] RIN 1625-AA00 and RIN 1625-AA87 Safety Zones; Northeast Gateway Deepwater Port, Atlantic Ocean, MA and Security Zone; Liquefied Natural Gas Carriers, Massachusetts Bay, MA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is extending the duration of two temporary safety zones of 500 meter radii around the primary components, two independent submerged turret-loading buoys, of Excelerate Energy's Northeast Gateway Deepwater Port, Atlantic Ocean, and its accompanying systems, as well as extending the duration of the temporary security zone around Liquefied Natural Gas Carrier
(LNGC)vessels approaching, engaging, regasifying, disengaging, mooring, or otherwise conducting operations at the deepwater port facility in Massachusetts Bay. The purpose of these temporary safety zones is to protect vessels and mariners from the potential safety hazards associated with deepwater port facilities. All vessels, with the exception of deepwater port support vessels, are prohibited from entering into or moving within either of the safety zones. The security zone is necessary to protect LNGC vessels calling on the deepwater port from security threats or other subversive acts. DATES: This rule extends the current temporary regulations, which have been in effect since May 7, 2008 (USCG-2008-0372) (73 FR 28039), and May 16, 2008 (USCG-2008-0301) (73 FR 31612), through July 17, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0372 and USCG-2008-0301 respectively, are available online at *www.regulations.gov* . They are also available for inspection or copying at two locations: The Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays, and the U.S. Coast Guard, Sector Boston, 427 Commercial Street, Boston, MA 02109, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary rule, call Chief Petty Officer Eldridge McFadden, Waterways Management Division, U.S. Coast Guard Sector Boston, at 617-223-5160. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. 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. The deepwater port facilities discussed elsewhere in this rule were recently completed and present potential safety hazards to vessels, especially fishing vessels, operating in the vicinity of submerged structures associated with the deepwater port facility. A more robust regulatory scheme to ensure the safety and security of vessels operating in the area, has been developed via separate rulemaking, and is available for review and comment at the Web site *http://www.regulations.gov* using a search term of USCG-2007-0087. That final rulemaking was published in the June 17, 2008, **Federal Register** (73 FR 34191) and will go into effect on July 17, 2008. This rule extends the existing temporary safety zones around the deepwater port infrastructure, as well as the temporary security zone around vessels scheduled to arrive in port, currently set to expire on July 12, 2008, until July 17, 2008, the effective date of the larger rulemaking. This extension is necessary to protect vessels from the hazards posed by the presence of the currently uncharted, submerged deepwater infrastructure. Failing to delay the effective day of this extension pending completion of notice and comment rulemaking is contrary to the public interest to the extent it could expose vessels currently operating in the area to the known, but otherwise uncharted submerged hazards. In addition, it would leave the Coast Guard without the regulatory enforcement tool that a security zone provides for vessels scheduled to call on the deepwater port in the near future. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose On May 14, 2007, the Maritime Administration (MARAD), in accordance with the Deepwater Port Act of 1974, as amended, issued a license to Excelerate Energy to own, construct, and operate a natural gas deepwater port, “Northeast Gateway.” Northeast Gateway Deepwater Port (NEGDWP) is located in the Atlantic Ocean, approximately 13 nautical miles south-southeast of the City of Gloucester, Massachusetts, in Federal waters. The NEGDWP will accommodate the mooring, connecting, and offloading of two liquefied natural gas carriers (LNGCs) at one time. The NEGDWP operator plans to offload LNGC by degasifying the LNG on board the vessels. The regasified natural gas is then transferred through two submerged turret-loading buoys, via a flexible riser leading to a seabed pipeline that ties into the Algonquin Gas Transmission Pipeline for transfer to shore. Excelerate recently completed installation of the STL buoys and associated sub-surface infrastructure, which includes, among other things, a significant sub-surface sea anchor and mooring system. In December 2007, the Coast Guard established a safety zone around the submerged turret loading buoys while regulations were developed to protect the buoys as well as passing vessels. See 73 FR 1274. That temporary safety subsequently expired and was re-established by the Coast Guard on May 15, 2008. See 73 FR 28039. That temporary safety zone is set to expire on July 12, 2008. On June 3, 2008, the Coast Guard published a rule establishing a security zone around vessels engaging in operations in the Northeast Gateway Deepwater Port. See 73 FR 31612. The final rule discussed in docket number USCG-2007-0087 was ultimately published in the **Federal Register** on June 17, 2008. See 73 FR 34191. Accordingly, it will become effective on July 17. The temporary zones created by this rule ensure that there is no gap in authority to ensure safety around the submerged deepwater port infrastructure or around any vessels calling on the port until the final rule's effective date of July 17. Discussion of Rule The Coast Guard is re-establishing two temporary safety zones 500 meters around the Northeast Gateway Deepwater Port (NEGDWP) STL buoys as described above to protect vessels from submerged hazards and potential security threats or other subversive attacks. All vessels, other than LNGCs and associated support vessels, are prohibited from entering into or moving within the safety zones. The Coast Guard is also re-establishing a temporary security zone encompassing all waters within a 500-meter radius of any LNGC, which is carrying LNG while it is approaching, engaging, regasifying, disengaging, mooring, or otherwise conducting operations at the NEGDWP. This rule extends the effective date of the safety zones established in 73 FR 28039 and the effective date of the security zone established in 73 FR 31612 through July 17, 2008. 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 regulation may have some impact on the public in excluding vessels from the areas of these zones. This impact, however, is outweighed by the safety and security risks mitigated by the enactment of these zones. 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 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 rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor within 500 meters of the STL buoys for the deepwater port. The impact on small entities is expected to be minimal because vessels wishing to transit the Atlantic Ocean in the vicinity of the deepwater port may do so, provided they remain more than 500 meters from the buoys and any LNGC vessels calling on the deepwater port. Vessels wishing to fish in the area may do so in nearby and adjoining areas when otherwise permitted by applicable fisheries regulations. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant Merridith Morrison, Assistant Chief, Waterways Management Division, Coast Guard Sector Boston, at 617-223-3028. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. 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 the 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, under the Instruction, 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. Therefore, this rule is categorically excluded, under figure 2-1, paragraph
(34)(g), of the Instruction, from further environmental documentation as the rule establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. Words of Issuance and Regulatory Text 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. Chapter 701, 3306, 3703; 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. Amend § 165.T01-0372 to add paragraph
(d)to read as follows: § 165.T01-0372 Safety and Security Zones: Northeast Gateway, Deepwater Port, Atlantic Ocean, Boston , MA.
(d)*Effective Date.* This section is effective from July 3, 2008 until July 17, 2008. 3. Amend § 165.T01-0301 to revise paragraph
(b)to read as follows: § 165.T01-0301 Security Zone: Liquefied Natural Gas Carrier Transit and Anchorage Operations, Massachusetts Bay, MA.
(b)*Effective Date.* This section is effective from July 3, 2008 until July 17, 2008. Dated: July 3, 2008. Gail P. Kulisch, Captain, U.S. Coast Guard, Captain of the Port, Boston. [FR Doc. E8-15947 Filed 7-10-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2005-0155; FRL-8691-2] RIN 2060-AO52 National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; withdrawal; revision. SUMMARY: EPA published a direct final rule and parallel proposal on April 1, 2008, to amend revisions to the national perchloroethylene air emission standards for dry cleaning facilities which EPA promulgated on July 27, 2006. Because we received adverse comment during the comment period on the direct final rule and parallel proposal, we are withdrawing the direct final rule and taking final action on the proposed rule to reflect our response to the comments. DATES: This final rule revision is effective July 11, 2008; the withdrawal of the direct final rule published on April 1, 2008, at 73 FR 17252 is effective July 11, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2005-0155. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available ( *e.g.* , Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute). Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2005-0155, Public Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Mr. Warren Johnson, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (E143-03), Environmental Protection Agency, Research Triangle Park, NC 27711, telephone number
(919)541-5124, electronic mail address *Johnson.warren@epa.gov.* SUPPLEMENTARY INFORMATION: On April 1, 2008, EPA published a direct final rule and parallel proposal for “National Perchloroethylene Air Emission Standards for Dry Cleaning” (73 FR 17252). We stated in the direct final rule and parallel proposal that if we received adverse comments by May 16, 2008, the direct final rule would not take effect and we would publish a timely withdrawal in the **Federal Register** . We received adverse comments on this direct final rule and are withdrawing it. As stated in the direct final rule and parallel proposal, we will not institute a second comment period on this action. Concurrent with the direct final rule, we published a separate notice of proposed rulemaking, to provide for the contingency of adverse comments on the direct final rule (73 FR 17292). We are now issuing a final rule based on the notice of proposed rulemaking and on comments received. *Judicial Review.* Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of the final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by September 9, 2008. Under CAA section 307(d)(7)(B), only an objection to the final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under CAA section 307(b)(2), any requirements established by the final action may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. Section 307(d)(7)(B) of the CAA further provides a mechanism for EPA to convene a proceeding for reconsideration, “if the person raising the objection can demonstrate to the Administrator that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the rule.” Any person seeking to make such a demonstration to EPA should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the person listed in the preceding FOR FURTHER INFORMATION CONTACT section and the Director of the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344-A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004. I. What action is EPA taking? In today's final rule, EPA is adopting the regulatory revisions to 40 CFR 63.320(d) and (e); 63.323(a)(1), (a)(1)(ii),
(b)and (c); and 63.324(d)(5) and (6), including some modifications from what we proposed to address the comments received. We received no adverse comments on the proposed revisions to 40 CFR 63.323(a)(1)'s introductory text, 63.323(a)(1)(ii), or 63.324(d)(5)-(6), and these revisions are being adopted exactly as proposed. Similarly, we received no adverse comments on our proposed amendment to § 63.320(d) adding cross-references to §§ 63.322(o)(3) and 63.322(o)(5)(i), or on our proposed amendment to § 63.320(e) adding a cross-reference to § 63.322(o)(3); consequently, those additions are also being adopted. However, one commenter, the State of Delaware, submitted a comment on the April 1, 2008 direct final rule and parallel proposal objecting to the removal from § 63.320(d) and
(e)of cross-references to § 63.322(o)(4), claiming that the removal of these cross-references would have exempted existing dry-to-dry machine systems from certain requirements intended to prevent the new installation of any perchloroethylene
(perc)machine in a building with a residence. Specifically that removal of these cross-references would allow owners and operators of dry cleaning systems installed after December 21, 2005 to relocate old, high-emitting dry-to-dry machine systems into residential buildings and significantly increase the residents' exposure to perc. Delaware recommended that our amendments to § 63.320(d) and
(e)be revised to clarify that existing dry-to-dry machine systems “remain subject to” the requirements of § 63.322(o)(4). We agree with the State of Delaware that our clarification would have had the unintended impact of revising requirements in the July 27, 2006 final rule. As we explained in the April 1, 2008 direct final rule (73 FR 17254), we believed that the cross-reference in § 63.320(d) and
(e)to the new source requirements of § 63.322(o)(4) was inadvertent, and we were concerned that some might interpret it to subject small existing sources already located in residential buildings to an immediate prohibition of perc emissions or an early retirement of perc-emitting machines. Rather, under our rules, such small existing systems are subject to the same December 21, 2020, phase-out date that applies to all other existing co-residential systems that are not eligible for the partial exemptions of § 63.320(d) or (e). (73 FR 17254.) However, Delaware's comments pointed out to us that § 63.322(o)(4) applies not only to mint-new machine systems that are constructed, re-constructed and installed in residential buildings, but also by its terms prohibits “relocation of a used machine” (i.e., new installation of an existing machine). Therefore, we agree with Delaware that it is inappropriate to remove the cross-references for § 63.320(d) and (e). This final rule will continue to include cross-references to § 63.322(o)(4), in order to avoid suggesting that any existing perc-emitting machines, no matter what size, may be newly installed in residential buildings. As we stated in the July 27, 2006, final rule, the requirement to eliminate perc emissions from dry cleaning systems installed after December 21, 2005, “applies to any newly installed dry cleaning system that is located in a building with a residence, regardless of whether the dry cleaning system is a newly fabricated system or one that is relocated from another facility.” (71 FR at 42728.) Two commenters submitted objections that relate to our proposal to amend § 63.323(b) and
(c)by deleting the July 27, 2006, rule's cross-references to § 63.322(o)(2). These amendments addressed the rule's inadvertently promulgated requirement that new area sources conduct specific types of monitoring when carbon adsorbers are used. The first commenter, a private citizen, asserted that some type of performance standard is needed for new “4th generation” dry cleaning machines, and implied that the result of EPA's proposed amendments is that there would not be one. The State of Delaware submitted similar, but more detailed, comments on this proposed amendment, arguing that by proposing to eliminate monitoring requirements associated with secondary carbon adsorbers located at new area sources, neither owners/operators nor State regulatory agencies will have information necessary to demonstrate that control devices are effective and that dry cleaning machines are being operated consistent with good air pollution control practices. Delaware claimed that eliminating monitoring requirements for these new area sources would increase perc emissions and consequently raise cancer risks, and that the monitoring requirements adopted in the July 27, 2006 rule impose minimal financial burden on dry cleaners. Delaware recommended that EPA therefore not eliminate the cross-reference to § 63.322(o)(2), or, if EPA does eliminate it, to replace it with an alternative means to demonstrate compliant operations, such as requiring desorption or carbon replacement in accordance with manufacturers' instructions or at least weekly (whichever is more stringent), or incorporating a monitoring strategy similar to that found in rules applicable for wetting agents and foam blankets that moves toward progressively less frequent monitoring until breakthrough occurs. As we explained in the direct final rule, the July 27, 2006, rule's application of the § 63.323(b) and
(c)monitoring requirements for new area sources subject to § 63.322(o)(2) was due to our failure to correct cross-references in the final rule when the proposed requirements for new area sources moved from § 63.322(o)(3) into § 63.322(o)(2). (73 FR 17253-54.) It was not our intention to impose these obligations on new area sources, nor had we proposed to impose them. (73 FR 17253-54.) We continue to believe that, as a result, the July 27, 2006, rule's promulgation of those requirements, merely by the erroneous cross-references to § 63.322(o)(2) in § 63.323(b) and (c), is not justified, and that the cross-references must be removed for that reason. Furthermore, we disagree with the assertions that removing the cross-reference to § 63.322(o)(2) from § 63.323(b) and
(c)results in there being no performance standard for machines subject to the new area source requirements. By its terms, § 63.322(o)(2) requires such area sources to route the air-perc gas-vapor stream contained within each dry cleaning machine through a refrigerated condenser and to pass the stream from inside the machine drum through a non-vented carbon adsorber or equivalent control device immediately before the door of the machine is opened. The carbon adsorber must be desorbed in accordance with manufacturers' instructions. We continue to believe that this is sufficient to ensure that new area source owners and operators conduct the work practices required by the rule in § 63.322(o)(2). Therefore, today's final rule adopts the proposed amendments to § 63.323(b) and
(c)that remove the cross-references to § 63.322(o)(2). One other commenter raised issues that were not the subject of the April 1, 2008, direct final rule. Specifically, the St. Louis County Air Pollution Control Program, while not intending to adversely affect the rulemaking, asked (along with the Missouri Department of Natural Resources) for an additional clarification that the temperature difference monitoring requirements found in § 63.323(a)(2), which were addressed neither by the July 27, 2006, final rule nor by the April 1, 2008, direct final rule, were intended to apply only to transfer units. While neither the April 1, 2008, direct final rule nor the July 2006 rule revisions to the 1993 rule addressed section 63.323(a)(2), we did erroneously reference § 63.323(a)(2)(ii) in the preamble to the April 1, 2008, direct final rule in stating: “In addition, due to the July 27, 2006, revisions to 40 CFR 63.323(a), one could interpret that using the monitoring method in 40 CFR 63.323(a)(2)(ii) is only an option when the dry cleaning machine is not equipped with refrigeration system pressure gauges.” (73 FR at 17254.) Therefore, we would like to clarify for the St. Louis County Air Pollution Control Program that the reference to 40 CFR 63.323(a)(2)(ii) should have been a reference to 40 CFR 63.323(a)(1)(ii) which was the subject of the direct final rulemaking. II. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order
(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act This final action does not impose any new information collection burden. Certain technical and editorial corrections that EPA is making to the National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities imposes no new burdens. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations 40 CFR part 63, subpart M under the provisions of the *Paperwork Reduction Act,* 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0234. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the Agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Since the amendments in this final rule are simply making technical corrections and clarifications to the existing rule requirements, this final rule will not impose any new requirements on small entities D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least-costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least-costly, most cost effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. These final rule amendments clarify certain provisions and correct typographical errors in the rule text for a rule EPA determined not to include a Federal mandate that may result in an estimated cost of $100 million or more (69 FR 5061, February 3, 2004). These clarifications do not change the level or cost of the standard. In addition, EPA has determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small governments because the burden is small and the regulation does not apply to small governments. Therefore, this final rule is not subject to the requirements of section 203 of the UMRA. E. Executive Order 13132: Federalism Executive Order
(EO)13132 (64 FR 43255, August 10, 1999) requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the EO to include regulations that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in EO 13132. The amendments provide clarification and correct typographical errors. These changes do not modify existing or create new responsibilities among EPA Regional Offices, States, or local enforcement agencies. Thus, Executive Order 13132 does not apply to this final rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order
(EO)13175 (65 FR 67249, November 9, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in EO 13175. This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in EO 13175. Thus, EO 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This final rule is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Energy Effects This final rule is not subject to Executive Order
(EO)13211, “Actions that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under EO 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note), directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. No new standard requirements are specified in this final rule. Therefore, the EPA is not adopting any voluntary consensus standards in the final rule. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. These final rule amendments do not relax the control measures on sources regulated by the rule and, therefore, will not cause emissions increases from these sources. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this final 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 this final rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective July 11, 2008. List of Subjects in 40 CFR Part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: July 7, 2008. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I, part 63, of the Code of Federal Regulations is amended as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart M—[Amended] 2. Section 63.320 is amended by revising paragraphs
(d)and
(e)to read as follows: § 63.320 Applicability.
(d)Each existing dry-to-dry machine and its ancillary equipment located in a dry cleaning facility that includes only dry-to-dry machines, and each existing transfer machine system and its ancillary equipment, and each new transfer machine system and its ancillary equipment installed between December 9, 1991, and September 22, 1993, as well as each existing dry-to-dry machine and its ancillary equipment, located in a dry cleaning facility that includes both transfer machine system(s) and dry-to-dry machine(s) is exempt from §§ 63.322, 63.323, and 63.324, except §§ 63.322(c), (d), (i), (j), (k), (l), (m), (o)(1), (o)(3), (o)(4) and (o)(5)(i); 63.323(d); and 63.324(a), (b), (d)(1), (d)(2), (d)(3), (d)(4), and
(e)if the total PCE consumption of the dry cleaning facility is less than 530 liters (140 gallons) per year. Consumption is determined according to § 63.323(d).
(e)Each existing transfer machine system and its ancillary equipment, and each new transfer machine system and its ancillary equipment installed between December 9, 1991, and September 22, 1993, located in a dry cleaning facility that includes only transfer machine system(s), is exempt from §§ 63.322, 63.323, and 63.324, except §§ 63.322(c), (d), (i), (j), (k), (l), (m), (o)(1), (o)(3) and (o)(4); 63.323(d); and 63.324(a), (b), (d)(1), (d)(2), (d)(3), (d)(4), and
(e)if the PCE consumption of the dry cleaning facility is less than 760 liters (200 gallons) per year. Consumption is determined according to § 63.323(d). 3. Section 63.323 is amended as follows: a. By revising paragraphs (a)(1) introductory text and (a)(1)(ii). b. By revising paragraph
(b)introductory text. c. By revising paragraph
(c)introductory text. § 63.323 Test methods and monitoring.
(a)* * *
(1)The owner or operator shall monitor on a weekly basis the parameters in either paragraph (a)(1)(i) or
(ii)of this section.
(ii)The temperature of the air-perchloroethylene gas-vapor stream on the outlet side of the refrigerated condenser on a dry-to-dry machine, dryer, or reclaimer with a temperature sensor to determine if it is equal to or less than 7.2 °C (45 °F) before the end of the cool-down or drying cycle while the gas-vapor stream is flowing through the condenser. The temperature sensor shall be used according to the manufacturer's instructions and shall be designed to measure a temperature of 7.2 °C (45 °F) to an accuracy of ±1.1 °C (±2 °F).
(b)When a carbon adsorber is used to comply with § 63.322(a)(2) or exhaust is passed through a carbon adsorber immediately upon machine door opening to comply with § 63.322(b)(3), the owner or operator shall measure the concentration of PCE in the exhaust of the carbon adsorber weekly with a colorimetric detector tube or PCE gas analyzer. The measurement shall be taken while the dry cleaning machine is venting to that carbon adsorber at the end of the last dry cleaning cycle prior to desorption of that carbon adsorber or removal of the activated carbon to determine that the PCE concentration in the exhaust is equal to or less than 100 parts per million by volume. The owner or operator shall:
(c)If the air-PCE gas vapor stream is passed through a carbon adsorber prior to machine door opening to comply with § 63.322(b)(3), the owner or operator of an affected facility shall measure the concentration of PCE in the dry cleaning machine drum at the end of the dry cleaning cycle weekly with a colorimetric detector tube or PCE gas analyzer to determine that the PCE concentration is equal to or less than 300 parts per million by volume. The owner or operator shall: 4. Section 63.324 is amended by revising paragraphs (d)(5) and (d)(6) to read as follows: § 63.324 Reporting and recordkeeping requirements.
(d)* * *
(5)The date and monitoring results (temperature sensor or pressure gauge) as specified in § 63.323 if a refrigerated condenser is used to comply with § 63.322(a), (b), or (o); and
(6)The date and monitoring results, as specified in § 63.323, if a carbon adsorber is used to comply with § 63.322(a)(2), or (b)(3). [FR Doc. E8-15872 Filed 7-10-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 262 [Docket No. FRA 2005-23774, Notice No. 2] RIN 2130-AB74 Implementation of Program for Capital Grants for Rail Line Relocation and Improvement Projects AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: Section 9002 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005) amends chapter 201 of Title 49 of the United States Code by adding section 20154. Section 20154 authorizes—but does not appropriate—$350,000,000 per year for each of the fiscal years
(FY)2006 through 2009 for the purpose of funding a grant program to provide financial assistance for local rail line relocation and improvement projects. Section 20154 directs the Secretary of Transportation (Secretary) to issue regulations implementing this grant program, and the Secretary has delegated this responsibility to FRA. This final rule establishes a regulation intended to carry out that statutory mandate. As of the publication of this final rule, Congress did not appropriate any funding for the program for FY 2006 or FY 2007 but did appropriate $20,040,200 for fiscal year 2008. DATES: August 11, 2008. ADDRESSES: For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* at any time or to Room W-12-140, West Building Ground Floor at the DOT's new headquarters at 1200 New Jersey Avenue, SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: John A. Winkle, Transportation Industry Analyst, Office of Railroad Development, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 13, Washington, DC 20590 ( *John.Winkle@dot.gov* or 202-493-6067); or Elizabeth A. Sorrells, Attorney-Advisor, Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590 ( *Betty.Sorrells@dot.gov* or 202-493-6057). SUPPLEMENTARY INFORMATION: I. Background A. Statutory Authority On January 17, 2007, FRA published a notice of proposed rulemaking
(NPRM)proposing to add part 262 to Title 49, Code of Federal Regulations. Part 262 would carry out the statutory mandate of section 9002 of SAFETEA-LU which amends chapter 201 of Title 49 of the United States Code by adding a new section 20154. Section 20154 authorizes—but does not appropriate—$350,000,000 per year for each of the fiscal years
(FY)2006 through 2009 for the purpose of funding a grant program to provide financial assistance for local rail line relocation and improvement projects. The statute requires the Secretary to implement the grant program through regulations. The Secretary has delegated this responsibility to FRA. The language and provisions of Part 262 as reflected in the NPRM and this final rule closely track the language set out in section 20154. B. Program Purpose As noted in the background section of the NPRM, state and local governments are looking for ways to eliminate the problems created by the presence of railroad infrastructure in many communities, infrastructure that at one time was critical to the development of the community but which now presents problems as well as benefits. Problems that have been identified range from community separation to blocked grade crossings to limits on economic development. Many times, the solution is to relocate or raise track vertically or move the track to an area that is better suited for it. In addition to relocation projects, many communities are eager to improve existing rail infrastructure in an effort to mitigate the perceived negative effects of rail traffic on safety in general, motor vehicle traffic flow, economic development, or the overall quality of life of the community. II. SAFETEA-LU On August 10, 2005, President George W. Bush signed SAFETEA-LU, (Pub. L. 109-59) into law. Section 9002 of SAFETEA-LU amended chapter 201 of Title 49 of the United States Code by adding a new § 20154, which establishes the basic elements of a funding program for capital grants for local rail line relocation and improvement projects. Subsection
(b)of the new § 20154 mandates that the Secretary issue “temporary regulations” to implement the capital grants program and then issue final regulations by October 1, 2006. This final rule carries out that statutory mandate. In order to be eligible for a grant for a relocation or improvement construction project, the project must mitigate the adverse effects of rail traffic on safety, motor vehicle traffic flow, community quality of life, including noise mitigation, or economic development, or involve a lateral or vertical relocation of any portion of the rail line, presumably to reduce the number of grade crossings and/or serve to mitigate noise, visual issues, or other externality that negatively impacts a community. A more detailed explanation of the rule text is provided below in the Section-by-Section Analysis. In section 20154, Congress authorized, but did not appropriate, $350 million per year for each fiscal year 2006 through 2009. At least half of the funds awarded under this program shall be provided as grant awards of not more than $20 million each. A State or other eligible entity will be required to pay at least 10 percent of the shared costs of the project, whether in the form of a contribution of real property or tangible personal property, contribution of employee services, or previous costs spent on the project before the application was filed. The State or FRA may also seek financial contributions from private entities benefiting from the rail line relocation or improvement project. In section 20154, Congress directed FRA to issue “temporary regulations” by April 1, 2006. As noted in the NPRM, under the Administrative Procedure Act and Executive Orders governing rulemaking, FRA could comply with Congress's deadline only by issuing a direct final rule or an interim final rule by April 1, 2006. However, the FRA cannot use either a direct final rule or an interim final rule because the legal requirements for using those instruments cannot be satisfied. The case law is clear that a statutory deadline does not suffice to justify dispensing with notice and comment prior to issuing a rule on grounds that notice and comment are “impracticable, unnecessary, or contrary to the public interest” under section 553(b)(3)(B) of the Administrative Procedure Act. Because as of the date of the NPRM no funding had been appropriated for the program and no projects could be funded at that time, FRA concluded that the purposes of SAFETEA-LU could best be achieved by proceeding with an NPRM in lieu of an interim final rule. Proceeding this way also satisfies the requirements of the Administrative Procedure Act and allows for greater public participation in the rulemaking process. C. Discussion of Comments FRA received approximately 28 written comments in response to the NPRM, including comments from state and local governments, the railroad industry and trade organizations, as well as members of the general public. Specifically, comments were received from the following organizations and individuals: Missouri Department of Transportation, Charlotte
(NC)Area Transit System, South Dakota Department of Transportation, City of Marceline, MO, Sacramento
(CA)Regional Transit District Capitol Corridor Joint Powers Authority (CA), Gateway Rural Improvement Pilot Association, Inc. (VT), International Air Rail Organization, City of Sacramento (CA), City of Greenville (NC), States for Passenger Rail Coalition, North Carolina Department of Transportation, County of Sacramento Department of Transportation, American Public Transportation Association, Board of Sumner County Commissioners (Wellington, KS), The New York Sate Department of Transportation, National Capital Planning Commission, North Carolina Railroad Company, Spokane Regional Transportation Council (WA), Caldwell Police Department (KS), City of Caldwell (KS), Idaho Transportation Department, Sacramento Area Council of Governments (CA), Kansas Department of Transportation, Troy Dierking. The following discussion provides an overview of the written comments received in response to the NPRM. More detailed discussions of the specific comments and how FRA has chosen to address those comments in the final rule can be found in the relevant Section-by-Section portion of this preamble. All of the comments submitted were in favor of the capital grants program. Many of the commenters had specific projects that they were interested in obtaining funding for under this program. A few commenters expressed concerns that the definition of allowable/reimbursable costs was too narrowly drawn and needed to include reimbursement for environmental assessments that may need to be performed or have already been performed prior to the application for grant funds. Several of the commenters observed that environmental costs constitute the great majority of the project costs, particularly in the early stages. Several other commenters wanted to add specific items as allowable/reimbursable costs. Others wanted specific assurances that a particular project fit within the parameters and eligibility criteria set out in the NPRM. A few commenters had concerns regarding the potential distribution of any grant monies, wanting to ensure that rural areas were not overlooked in the application and selection process. Some commenters wanted changes or adjustments to the definitions section. Finally, a few commenters requested that FRA hold a public hearing on the NPRM. Given the lack of substantial controversy raised in any of the comments and the effort and expense involved in holding a public hearing, FRA concluded that a public hearing was not necessary or justifiable. None of the requests for a hearing indicated how a hearing would assist in evaluating the NPRM. In addition, some of the hearing requests appeared more focused on increasing the visibility of the capital grants for rail line relocation and improvement program rather than addressing specific issues with the NPRM. III. Section-by-Section Analysis and Response to Comments SAFETEA-LU contains very specific language regarding implementation of the rail line relocation and improvement program. In several sections, the language in this final regulation is reprinted directly from 49 CFR 20154. Given such an unambiguous statutory mandate, FRA has made only a few additions in this final regulation to include language that was not in the statute. For those sections, there is a further discussion of FRA's intent. This Section-by-Section Analysis does not discuss Congressional intent or address the costs or benefits of the program as a whole or any potential relocation project. Decisions regarding the advisability of the program were made by the Congress in enacting section 20154. Section 262.1 Purpose This section, which has not changed from that which was proposed in the NPRM, merely states that the purpose of this final rule is to carry out the Congressional mandate in § 9002 of SAFETEA-LU by promulgating regulations which implement the grant financial assistance program for local rail relocation and improvement projects set forth in new § 20154 of Title 49 of the United States Code. No comments were received on this section. Section 262.3 Definitions One commenter (New York DOT) suggested adding a definition for the term “project” and specifically mentioned a highway bridge over rail tracks as a potentially eligible activity. The commenter expressed concern that such a bridge could constitute a grade separation and add to the safety and efficiency of rail service but might be excluded because the rail line would not be physically touched. While FRA makes no comment herein upon the eligibility or ineligibility of specific projects proposed by commenters, the agency believes that the current definition of “project” under subsection 262.3 clearly reflects the mandate of Congress to use the capital grant funds for local rail line relocation or improvement projects. The current definitions of the terms “project” and “improvement” along with the eligibility standards detailed in subsection 262.7 provide an adequate identification of eligible projects. The agency also notes that the term “improvement” encompasses rail infrastructure and not just railroad lines. One commenter (Missouri DOT) wants to add language reading “any combination thereof” to the definition of “Non-Federal share.” Missouri DOT indicated that the current definition is too restrictive because the definition ends with “by a State or other non-Federal entity” when a particular project might receive financial support from a variety of sources. FRA agrees that adding this language is appropriate because non-Federal share funding is contemplated to come from a variety of sources and be supplied through a variety of channels. The definition has been revised to reflect this change. Missouri DOT also wants to specifically add to the definition of “construction” the costs of consultants who are designing a project. FRA notes that the definition of construction, which includes architectural and engineering costs under item number six of the definition, contains no requirement that these be incurred solely by in-house personnel. Thus, consultant costs should be eligible if they are a part of a project that meets all of the criteria under subsections 262.7 and 262.9. Missouri DOT also recommends that the reasonable costs of closures should be included within the definition of existing rail crossings. FRA does not fully understand the intent of this comment but notes that the definitions of “construction” and “improvement” are broad enough to support consideration of reasonable costs of closing existing rail crossings. One commenter (City of Marceline, MO) wants to add to the costs included in the definition of “construction” the costs associated with construction inspection management. The statute which mandates these regulations gives the Secretary discretion to determine eligible costs and while FRA has made clear that the costs listed in the definition under subsection 262.3 are not limited to those specifically mentioned, “construction inspection management” costs that are germane to the particular project certainly seem to qualify. The definition of “construction” also includes references to both supervising and inspecting as components of building a project. However, FRA does not believe it is necessary to add this particular item to the definitions section of the rule text. The City of Marceline, MO also wants FRA to place greater emphasis on three areas in the definition of “quality of life:”
(1)Impact on emergency services;
(2)accessibility to the disabled as required under the Americans with Disabilities Act; and
(3)school access. FRA notes that the statutory definition of “Quality of Life” in subsection 20154(h)(2) includes “first responders' emergency response time.” This specific portion of the comment appears to be addressing a broader view of “quality of life” by expanding the definition to include “impact on emergency services.” Accordingly, FRA has added this proposed language into the rule text. The second proposed addition suggested by this commenter, while not elaborated upon, is an excellent addition to the definition of “quality of life.” Poorly located, hard-to-reach (or difficult to get around) rail lines that have little or no access to disabled passengers/commuters/citizens certainly can impact quality of life. FRA will incorporate this suggestion with a slight modification to include section 504 of the Rehabilitation Act of 1973, as amended. Third, the commenter proposed to add “school access” as a “quality of life” measure noting that the commenter's local school is located on the opposite side of the railroad from the central business district, the fire and police stations and a large portion of the residential neighborhoods. Insofar as the commenter was expressing concern that poorly or inconveniently placed rail lines contribute to students/parents/teachers' difficulties in getting to and from school, then this portion of the comment will also be adopted. Kansas DOT also suggests that traffic, delay, and congestion should be taken into account when measuring “quality of life” under subsection 262.9(d). FRA agrees that these are important quality of life factors. The definition of “quality of life” has been expanded in subsection 262.3 to include these factors. North Carolina DOT suggests that safety, congestion and air quality should be taken into account when measuring “quality of life” under subsection 262.9(d). FRA agrees that these are important quality of life factors. The definition of “quality of life” has been expanded in subsection 262.3 to include these factors, with the exception of “air quality” which FRA believes is already adequately addressed in the “environmental” factor. Several commenters (City of Sacramento DOT, Sacramento Regional Transit District, County of Sacramento, Sacramento Area Council of Governments, Capital Corridor Joint Powers Authority CA) requested that relocation, reconstruction or construction of passenger rail facilities or stations be specifically mentioned in the definition of an “improvement” in subsection 262.3. The statute's mandate is clear: The purpose of the capital grants program is for the “improvement of the route or structure of a rail line.” The statute also makes clear that one of the considerations in approval of a project is the “effects of the rail line on the freight and passenger rail operations on the line.” FRA believes that these mandates are broad enough to support consideration of passenger rail facilities or stations if they are a part of a project that meets all the criteria under subsections 262.7 and 262.9; therefore, FRA has determined that it is not necessary to add “relocation, reconstruction or construction of passenger rail facilities or station” to the definition of “improvement” under subsection 262.3. One commenter (Kansas DOT) is concerned that the definition of “allowable costs” states that only construction costs are reimbursable and that KDOT believes that right of way and utility adjustment costs should also be valid reimbursable construction costs. FRA notes that the definition of construction costs specifically includes both of those costs under subsection 262.3 in the definition of “construction,” items
(3)and (5). Subsections 20154(h)(1)(C) and
(E)also specifically list right of way acquisition and utilities relocation. Administrator This definition makes clear that when the term “Administrator” is used in this Part, it refers to the Administrator of the Federal Railroad Administration. It also provides that the Administrator may delegate authority under this rule to other Federal Railroad Administration officials. Allowable Costs This definition makes clear that only costs classified as “allowable” will be reimbursable under a grant awarded under this Part. Specifically, construction costs are the only costs that are reimbursable. Construction This definition sets out the types of project costs that are contemplated as being reimbursable under this Part. Only these costs will be allowable under a grant from this program. This definition closely tracks 49 U.S.C. 20154(h)(1). Subsection 20154(h)(1)(F) gave the Secretary the authority to prescribe additional costs, other than those specifically listed in § 20154(h)(1), as allowable under this Part. As the authority to promulgate this rule has been delegated to FRA by the Secretary, subsection 262.3, in the definition of “construction,” item
(6)makes clear that FRA has that authority to prescribe additional costs. In addition, item
(6)also makes clear that architectural and engineering costs associated with the project as well as costs incurred in compliance with applicable environmental laws and regulations are considered construction costs, and will be allowable. FRA This definition makes clear that when the term “FRA” is used in this Part, it refers to the Federal Railroad Administration. Improvement The program established by the Act is intended to provide funds for both rail line relocation and improvement projects. This definition makes clear the types of projects that fall under the category of “improvements.” FRA considers improvements to be projects such as those that repair defective aspects of a rail system's infrastructure, projects that enhance an existing system to provide for improved operations, or new construction projects that result in better operational efficiencies. Examples include track work that increases the class of track, signal system improvements, and lengthening existing sidings or building new sidings. Non-Federal Share This definition indicates that Non-Federal share means the portion of the allowable cost of the local rail line relocation or improvement project that is being paid for through cash or in-kind contributions by a State or other non-Federal entity. The definition has been revised in the final rule as explained above. Private Entity This definition makes clear what types of entities are contemplated under § 262.13. A private entity must be a nongovernmental entity, but can be a domestic or foreign entity and can be either for-profit or not-for-profit. Project This definition makes clear that the term “project” refers only to a local rail line relocation or improvement project undertaken with funding from a grant from FRA under this Part. Quality of Life FRA requested comments in the NPRM on what factors should be considered when measuring “quality of life.” The Act requires only that the definition include first responders' emergency response time, the environment, noise levels, and other factors as determined by FRA. Thus, Congress left FRA some discretion in determining what else should be considered under this definition. FRA believes “quality of life” should include factors associated with an individual's overall enjoyment of life or a community's ability both to function and to provide services to its residents at a reasonable level. Commenters were invited to discuss specific factors that can measure these somewhat amorphous concepts, as well as any other factors that may be appropriate. The definition has been revised in the final rule as discussed above. Real Property This definition makes clear that “real property” refers to land, including land improvements, structures and appurtenances thereto, excluding movable machinery and equipment. Relocation This definition states what relocation consists of and provides the distinction between the two types of rail line relocations. A lateral relocation occurs when a rail line is horizontally moved from one location to another, usually away from dense urban development, grade crossings, etc., in an effort to allow trains to operate more efficiently and the community surrounding the old line to function more effectively. The typical example is moving a rail line that runs through the middle of a town or city to a location outside of the town or city. A vertical relocation occurs when a rail line remains in the same location, but the track is lifted above the ground, as with an overpass, or is sunk below ground level, as with a trench. Secretary This definition makes clear that “Secretary” refers to the Secretary of Transportation. State This definition is reprinted from SAFETEA-LU and can be found at 49 U.S.C. 20154(h)(3). It makes clear that, for the purposes of this Part except for § 262.17, any of the fifty States, political subdivisions of the States, and the District of Columbia is a “State” and eligible for funding from this program. The definition also makes clear, however, that for purposes of § 262.17 only, “State” does not include political subdivisions of States, but instead only the fifty States and the District of Columbia. Tangible Personal Property This definition indicates that “tangible personal property” refers to property that has physical substance and can be touched, but is not real property. Examples of tangible personal property include machinery, equipment and vehicles. Section 262.5 Allocation Requirements This section is based on the language included in 49 U.S.C. 20154(d). It mandates that at least fifty percent of all grant funds awarded under this Part out of funds appropriated for a fiscal year be provided as grant awards of not more than $20,000,000 each. Designated, high-priority projects will be excluded from this allocation formula. The statute states that the $20,000,000 amount will be adjusted by the Secretary to reflect inflation for each fiscal year of the program beginning in FY 2007. Under the Secretary's delegation of rulemaking authority to FRA, however, FRA will make the annual inflationary adjustment. In making the adjustment for inflation, FRA will use guidance published by the Association of American Railroads (AAR). Specifically, FRA will use the materials and supplies component of the *AAR Railroad Cost Indexes.* FRA will make the adjustment each October based on the most recent edition of the *Cost Indexes* . Several commenters (North Carolina Railroad Company, Sacramento Area Council of Governments) suggested that the requirements could be more clearly defined by FRA, specifically what type of projects will be considered high-priority, and therefore, excluded from the allocation formula. FRA did not include a definition of “high priority projects,” because Congress designates certain projects as “high-priority” when it determines that specific projects will be funded and appropriates funds for those particular projects through the appropriations process. Subsection 262.5 remains unchanged from the NPRM. Section 262.7 Eligibility This section is reprinted directly from SAFETEA-LU and can be found at 49 U.S.C. 20154(b). It sets out the eligibility criteria for projects and declares that any State (or political subdivision of a state) is eligible for a grant under this section for any construction project for the improvement of a route or structure of a rail line that either is carried out for the purpose of mitigating the adverse effects of rail traffic on safety, motor vehicle, traffic flow, community quality of life, or economic development, or involves a lateral or vertical relocation of any portion of a rail line. As noted above, lateral relocation refers to horizontally moving the rail line to another location while vertical relocation refers to either lifting the rail line above the ground or sinking it below the ground. Subpart
(b)of this section also makes clear that only costs associated with construction, as defined in this Part, will be allowable costs for purposes of this Part. Therefore, only construction costs will be eligible for reimbursement under a grant agreement administered under this Part. One commenter (New York DOT) suggested that FRA clarify what, if any, retroactive expenses will be eligible for reimbursement through identification of a time frame or project start date that would vary with expense type. This section was taken verbatim from the statute and can be found at 49 U.S.C. 20154(b). The statute is clear that “only costs associated with construction, as defined in this Part [subsection 20154(h)(1)] will be considered allowable costs for purposes of this Part [section 20154].” FRA has determined that identifying specific expenses, including retroactive expenses, runs counter to the purposes of the statute which ties allowable costs to “costs associated with construction.” FRA does not opine on whether specific expenses, including retroactive expenses might be “allowable costs” as contemplated under the statute. This determination is best left to the individual grant agreements on a case-by-case basis. New York DOT also requests that FRA clarify whether public or private grade crossings will be eligible for the program. Although it was not exactly clear what kind of grade crossing the commenter was referring to, FRA assumes the comment refers to any grade crossing, public or private within the confines of an otherwise eligible project. The statute's mandate is clear: The purpose of the capital grants program is for the “improvement of the route or structure of a rail line.” The statute also states that one of the considerations in approval of a project is the “effects of the rail line on the freight and passenger rail operations on the line.” FRA has concluded that these mandates are broad enough to support consideration of grade crossings if they are a part of a project that meets all the criteria under subsections 262.7 and 262.9. It is not necessary to specifically refer to “public or private grade crossings” as a potentially eligible project under subsection 262.7 New York DOT also suggests that FRA define more specifically what costs would be eligible for reimbursement under subsection 262.7 and to clarify how those costs will be verified. The commenter suggests referencing 23 CFR 140, Subpart 1—Reimbursement for Railroad Work. FRA has reviewed the regulation cited by the commenter. These regulations address reimbursement to the States for railroad work on projects undertaken in accordance with the provisions of 23 CFR 646, subpart B, entitled, “Railroad-Highway Projects.” The purpose of this subpart is to prescribe policies and procedures for advancing federal-aid projects involving railroad facilities. While somewhat similar in nature, there are marked differences in the purposes of the two programs. This program is being promulgated under 49 CFR 262 and is solely applicable to rail line relocations and/or improvements. The statute has set out what costs are to be allowable and these criteria will be incorporated into any grant agreement. While 23 CFR 140, Subpart 1 is helpful as a reference and reminder of the different costs associated with a project, FRA has determined that it will be more in keeping with the statutory directions to craft grant agreements that are specifically geared to the statutory criteria and the project being funded. One commenter (Charlotte Area Transit System) wants to ensure that a rail line, even though it may be currently out-of-service, would potentially be eligible for the program. Specifically, the commenter proposes to revise “mitigating adverse effects” in subsection 262.7(a)(1) to “mitigating current or anticipated adverse effects.” Additionally the commenter proposes to add the following language to the end of subsection 262.7(a)(2): “whether or not currently in use.” Both of these subsections incorporate the statutory language and FRA cannot make changes to Congressional mandates where it has not been given discretion to do so. In the case of out-of-service rail lines, however, the current language of subsection 262.7 appears to be broad enough to support such a project if it meets other requirements of the program as set out in the statute and regulation. NC DOT offered a very similar concern requesting that the final rule authorize projects that make use of both active and out-of-service rail rights of way and programmed service expansions. One commenter (Sacramento Regional Transit) wanted FRA to expand the eligibility of projects that can be funded under the program to include facilities that are already in use as passenger rail stations under subsection 262.7 In the case of facilities already in use as passenger rail stations, the current language of subsection 262.7 appears to be broad enough to support such a project if it meets the other requirements of the program as set out in the statute and regulation. Additionally, as previously discussed in the FRA response to comments under subsection 262.3, the statute's mandate is clear: The purpose of the capital grants program is for the “improvement of the route or structure of a rail line.” The statute also states that one of the considerations in approval of a project is the “effects of the rail line on the freight and passenger rail operations on the line.” FRA believes that these mandates are broad enough to support consideration of passenger rail facilities or stations if they are a part of a project that meets all the criteria under subsections 262.7 and 262.9. It is not necessary to specifically refer to “facilities already in use as passenger rail stations” as a potential “improvement” under subsection 262.3. One commenter (Gateway Rural Improvement Pilot Association (VT)) criticized the exclusion of public authorities and special-purpose non-profit corporations as eligible applicants for the program. FRA again emphasizes that the eligibility criteria were established by Congress and the statutory language directed that only States or political subdivisions of States are eligible applicants. FRA cannot make changes to Congressional mandates where it has not been given discretion to do so. One commenter (the National Capital Planning Commission) thought that subsection 262.7(b) should be clarified as it relates to NEPA requirements to state that only NEPA costs associated with construction of a particular project be considered “allowable costs.” FRA agrees that some clarification is needed in this regard and adopts NCPC's comment to include “as defined in section 262.3” in section 262.7(b), which now reads “(b) Only costs associated with construction, as defined in § 262.3, will be considered allowable costs.” This is the only revision made to subsection 262.7 from the NPRM. Section 262.9 Criteria for Selection of Rail Lines This section is based extensively on 49 U.S.C. 20154. It sets out the criteria for FRA to use in determining which projects should be approved for grants under this Part. The statute specifies that in determining whether to award a grant to an eligible State (as defined in this Part) under this section, the Secretary shall consider the following factors: • The capability of the State (as defined in this part) to fund the project without Federal grant funding; • The requirement and limitation relating to allocation of grant funds provided in § 262.5 of this Part; • Equitable treatment of the various regions of the United States; • The effects of the rail line, relocated or improved as proposed, on motor vehicle and pedestrian traffic, safety, community quality of life, and area commerce; and • The effects of the rail line, relocated or improved as proposed, on the freight and rail passenger operations on the rail line. Although the listed factors are fairly comprehensive, FRA sought to retain the flexibility to consider other factors that may not be readily apparent, but may be critical in evaluating the effectiveness of expending funds to achieve the expected benefits of a project. Accordingly, FRA included an additional “catchall” criterion in its NPRM subsection 262.9(f). This additional criterion would allow FRA to consider any other factors FRA determines to be relevant to assessing the effectiveness and/or efficiency of the grant application in achieving the goals of the national program, including the level of commitment of non-Federal and/or private funds to a project and the anticipated public and private benefits. FRA's NPRM solicited comments on this addition and any other potential factors that the FRA may consider in determining whether to award a grant. The South Dakota Department of Transportation commented: “We are not opposed to the FRA having some flexibility in weighing applications, but note that neither the statute not{r} the proposed rule includes a statement of the ‘goals of the national program.’ We are concerned that this approach implies that FRA could develop ‘national’ program goals on its own, with no notice and comment process, and then apply them in weighing the merits of applications. Because the NPRM does not identify the national goals that would receive weight under subsection
(f)we cannot support the proposed additional language. Again, we are not against all flexibility for FRA but, with the exception of one factor, discussed below [the level of commitment of non-Federal and or private funds to a project] subsection
(f)is too open-ended and vague to warrant our support.” In response to comments received, FRA believes that additional clarification is needed regarding how it will select from eligible projects. FRA as well as the federal government, believes that one of the national goals is to select projects that are cost effective in that the benefits exceed the cost. States, the FRA and the federal government have an interest in maximizing the benefits derived from the investment of Federal, State, local or private funding in rail line relocation projects and in proposing and selecting projects that are cost effective in terms of the benefits achieved in relation to the funds expended. Statutory criteria in subsections 262.9(d) and
(e)each require an assessment of the benefits to be derived from a project. The criterion in subsection 262.9(f) seeks to expand the universe of factors the FRA will consider in assessing effectiveness and efficiency of the project. To be clear, in evaluating applicant projects for funding, FRA will examine the evidence of the project's cost effectiveness. While we will consider all the statutory criteria in evaluating applications, we intend to approve only those projects where the benefits can reasonably be expected to exceed the costs. FRA will attempt to target funds to projects that produce the greatest net benefits. Therefore, the rule language has been clarified to require applicants to submit evidence sufficient for the FRA to determine whether projects proposed for Federal investment are cost-effective in terms of the benefits achieved in relation to the funds expended. In addition, as provided for in subsection 262.11 a State must submit a description of the anticipated public and private benefits associated with each rail line relocation or improvement project described in subsections 262.7(a)(1) and
(2)and the State's assessment of how those benefits outweigh the costs of the proposed project. The determination of such benefits should be developed in consultation with the owner and user of the rail line being relocated or improved or other private entity involved in the project. The State shall also identify any financial contributions or commitments it has secured from private entities that are expected to benefit from the proposed project. Project applications that include a realistic projection of and detailed analysis of the project's costs and benefits will be considered most favorably. The FRA does not intend to impose a rigid list of data elements that applicants could address in demonstrating cost effectiveness, and we will consider all relevant information, consistent with our statutory obligation. However, the following are among the considerations that might be relevant factors. • Vehicle counts at highway crossings; distinguishing among passenger, heavy truck, emergency, etc., vehicles would strengthen an application. • Pedestrian counts. • Trains per day (passenger and freight). Average train length and for freights the frequency of hazmat in train consists. • Train horn frequency (passenger and freight). Average number (and volume) of train horns daily near populated areas that a relocation or improvement project could potentially reduce. • Class of track under FRA's track safety standards for both the existing and the proposed relocated rail line. • Average train speeds (passenger and freight) and length of time any crossing is blocked. • Proximity of switching yards to a crossing and length of time any crossing is blocked by freight switching moves. • Movement of emergency vehicles through a crossing and distance of the crossing from a hospital, nursing home, fire station, military base, power plant, school or similar facility where time lost waiting for a crossing to clear could contribute to injury or death. • Relocation/closing of a grade crossing so that volunteer firefighters can travel more quickly from their office/home to the fire station, potentially resulting in better time to emergency calls. • Number of crossings in a particular community/segment and the impact of frequent crossings on a community (e.g., traffic congestion, train whistles/horns). • Amount of railroad-owned land in a town/city/political jurisdiction that might be abandoned, leading to the loss of property tax receipts, resulting from a relocation. • With respect to local industries served by the line proposed for relocation, identify transport alternatives that would be available if the relocation is approved; identify industries that would be newly served by the relocated rail line; and identify economic impacts on the community from the project such as jobs created/lost, tax revenues, etc. • Documented incursions of vehicles on to rail right-of-way. Number of accidents per year, severity (fatalities), dollar value (current dollars) of each accident, and any findings of fault by police, railroads, FRA, National Transportation Safety Board. • Any pertinent information taken from FRA's on-line safety data base *www.fra.gov/safetydata.* (e.g., number of grade crossing or trespasser accidents/incidents, injuries, fatalities, ranking in the FRA Highway Rail Grade Crossing Web Accident Prediction System.) • Environmental impacts from the existing rail line (noise, vibration, air pollution) that would be eliminated by the relocation; environmental impacts from the relocated rail line (positive and negative). As noted above, this list presents examples of the types of data that would support an assessment of cost effectiveness, but is not all inclusive. FRA invites applicants to submit analysis of alternate or additional data, appropriate to the specific project under consideration for funding. One commenter (North Carolina Railroad Company) indicated that while it agreed with the FRA that the criteria for selection in subsection 262.9 should ensure equitable treatment of various regions of the United States, it suggested that FRA clarify how high priority projects (see subsection 262.5) will be recognized within those regions. It is the agency's view that the presence of designated high priority projects in a particular region of the country would be a factor to be considered by FRA in evaluating whether to award a grant to another project in that same area of the country as the agency seeks to ensure equitable treatment of various regions of the United States. North Carolina Railroad Company additionally requests that FRA clarify the language, “the capability of the State to fund the rail line relocation without Federal grant requirement” criterion under subsection 262.9(a). Specifically, the commenter questions whether the above criterion means that FRA will provide greater support to poorer States, to States with larger projects that are more difficult to fund, or to States that have or are likely to have significant matching funds from non-Federal entities. The language found in subsection 262.9(a) tracks the statutory language as set out in 49 U.S.C. 20154(c)(1), which reads: “[t]he capability of a State to fund the rail line relocation project without Federal grant funding.” This factor as set out in the statute is one of five criteria that FRA must consider and was not assigned any greater weight than any of the other four factors. Congress' inclusion of this factor does suggest to the FRA that the rail line relocation and improvement program should not be used to fund a project that the State is fully capable of funding on its own. FRA included a discussion of some of the considerations that might be relevant to the agency in evaluating this factor in the NPRM section-by-section discussion related to this section. On the other hand, a State or other non-Federal entity is required to provide at least 10 percent of the shared costs of a project funded under this program. Logically, the program can support more improvements to the extent that States or other non-Federal entities cover a percentage of the shared costs that is in excess of 10% and this would be relevant to the agency in evaluating the proposed projects. One commenter (South Dakota DOT) is concerned that FRA's intention to divide the country along the lines of FRA's eight regions in interpreting the language in subsection 262.9(c) may put rural areas at a disadvantage. South Dakota DOT wants FRA to add “including equitable treatment of rural and metropolitan areas” to the end of the subsection. The language found in subsection 262.9(c) tracks the statutory language as set out in 49 U.S.C. 20154(c)(3), which reads: “[e]quitable treatment of the various regions of the United States.” This factor as set out in the statute is one of five criteria that FRA must consider and there is no indication that it is to have any greater weight than any of the other four factors. Whether the consideration of this factor along with the other four factors as set out by Congress will disadvantage (or advantage) “rural areas” would have to be evaluated on a case-by-case basis. FRA does not have the discretion to change the language set out in the statute. At this point, FRA does not believe that its intention to use the agency's current regional breakdown will have an adverse impact on rural or metropolitan areas. FRA did not receive any suggestions for alternative ways of dividing up the country. The Idaho Transportation Department and the Spokane Regional Transportation Council urged their support for subsection 262.9(c) as drafted. South Dakota DOT raises a concern about the interplay between subsections 262.9(a) and (f). While it recognizes the statutory basis for subsection 262.9(a), it is concerned that FRA's addition of the non-statutory language in subsection 262.9(f), and specifically the language relating to the level of commitment of non-Federal or private sector funds to a project, may potentially disadvantage those most in need of federal assistance as they would be least able to make a commitment to the project beyond the minimum required match. FRA notes that this is but one of six factors that must be evaluated before deciding whether to approve funding for a particular project. FRA included this language for several reasons. First, the statute clearly indicates that the required non-Federal match is not set at a certain percentage as it is with some other funding programs but provides for FRA to secure *at least* 10 percent from non-Federal sources. This suggests to the agency a goal of achieving the maximum benefit from the available Federal funds. Second, the statute requires the Secretary to consider the feasibility of seeking financial contributions or commitments from private entities involved with a project in proportion to the expected benefits to such private entities. Again, this requirement reinforces the concept of securing the maximum public benefit from the program funds. Leveraging the Federal funds along with state, local and private funds can produce the most benefit for Federal dollar expended. Several commenters (City of Sacramento DOT, Sacramento Regional Transit, County of Sacramento, Sacramento Area Council of Governments) wanted “security risks” or “Homeland Security risks” to be set forth in the selection criteria under subsection 262.9. FRA agrees that “security risks” or “Homeland Security risks” are important factors that may be relevant in assessing the effectiveness or efficiency of a grant application. However, these particular considerations are only two among the “other factors” that FRA may consider under subsection 262.9(f). Five of the six criteria in section 262, specifically subsections 262.9(a)-262.9(e) were mandated in the statute. Sacramento Regional Transit also wanted FRA to provide explicit scoring of project criteria, particularly giving highest priority to community benefit and quality of life. FRA, as discussed in some of the previous comments, has determined that the statute does not provide for giving one criterion more weight than another. Similarly, because the NPRM did not identify what FRA would consider a “good” project, New York State DOT suggests that FRA provide additional detail on project preferences to guide project development and submittals. As the previous discussion under this subsection has highlighted, FRA does not have a preconceived notion of what constitutes a good project. The agency intends to fairly and consistently apply the selection criteria included in subsection 262.9 in determining whether to award a grant to an eligible State under this program. One commenter (the Gateway Rural Improvement Pilot Association (VT)) recommended that FRA consider the following factors in identifying eligible projects:
(1)The potential of a project to share the load for both freight and passengers in a corridor where rail lines run parallel to the route of a National Highway System in an area not served by an interstate highway;
(2)the potential to address two or more projects within a single corridor; and
(3)the potential of a project to support economic development and urban revitalization efforts. FRA agrees that the three factors suggested by this commenter are important factors that may be relevant in assessing the effectiveness or efficiency of a grant application. However, these factors should also be considered as one (or more) among the “other factors” that FRA may consider under subsection 262.9(f). The likelihood that some projects will offer public benefits not specifically foreseen by Congress or the agency underscores the importance of including subsection 262.9(f). Five of the other six criteria, specifically subsections 262.9(a)-(e) were mandated in the statute. Section 262.11 Application Process All grant applications submitted under this program must be submitted to FRA through the Internet at *http://www.grants.gov.* All Federal grant-making agencies are required to receive applications through this website. Potential applicants should note that the information below describes FRA's typical grant application requirements. However, the specific requirements for individual grants will be listed in the “Instructions” section for the particular grant for which FRA is accepting applications. The application process for funds appropriated under § 20154 will differ depending on whether the grant is non-competitive or discretionary (competitive). Non-competitive applications—usually projects designated as high-priority in the appropriations statute or in the Conference Report accompanying an annual appropriation—generally must include the following:
(1)A detailed project description;
(2)Standard Forms
(SF)424—Application; SF 424A or C—Budget Information; SF 424B or D—Assurances; Assurances and Certifications (i.e., Certification Regarding Debarment/Suspension/Ineligibility, Certification Regarding Drug-free Work Place Requirements; Certification Regarding Lobbying, Certificate of Indirect Costs); SF 3881—Payment Information; SF 1194—Authorized Signatures; and
(3)an Audit History. Potential applicants should keep in mind that these are the typical forms that FRA requests with non-competitive applicants. FRA may not require all of these for a particular application. For a discretionary (competitive) grant, applicants will be provided with certain basic information covering deadlines and addresses for submitting statements of interest, and an estimate of the amount of funding available. FRA had indicated in the preamble to the NPRM that FRA's staff would develop a Source Selection Plan
(SSP)to be used for evaluating applications and that the SSP would be made available to all applicants. This process was described only in the preamble and was not included as a part of the proposed rule. The agency has now concluded that it is not needed and is not included in the final rule. The agency will make project selections on the basis of the criteria described in the final rule. Applicants selected for funding will then be required to submit some of the same information described above for the non-competitive projects (i.e., standard forms, audit history, etc.). All applicants should keep in mind that no funding will be available for this program unless and until Congress appropriates funding for it. SAFETEA-LU authorized, but did not appropriate, $350 million per fiscal year for each fiscal year 2006 through 2009. As of the publication date of this final rule, Congress has not appropriated any funds for fiscal years 2006 or 2007 and has appropriated $20,040,200 for fiscal year 2008. As Congress has appropriated both competitive and non-competitive funds for specific projects under this Program, FRA will notify the potential recipient(s) of the non-competitive funds and will disburse the funds as soon as this final rule is effective. With respect to the competitive funds, FRA will publish a Notice of Funds Availability
(NOFA)in the **Federal Register** and eligible applicants will be able to apply for a grant through *www.grants.gov.* FRA anticipates that the NOFA will simply indicate the amount of funds appropriated by Congress and basic information about the application deadlines for applying through *www.grants.gov.* Subsection 262.11(b) mandates that, when submitting an application, a State must submit a description of the anticipated public and private benefits associated with each proposed rail line relocation or improvement project and its assessment of how those benefits outweigh the costs of the proposed project. The determination of the benefits must be developed in consultation with the owner and user of the rail line being relocated and improved or other private entity involved in the project. Since one of the factors that FRA will consider in selecting projects is the level of commitment of non-Federal and/or private funds available for the project (see proposed section subsection 262.9(f)), applications should also identify the financial contributions or commitments the State has secured from any private entities that are expected to benefit from the proposed project. The language for this subsection is based upon SAFETEA-LU requirements and can be found at 49 U.S.C. 20154(e)(4)(A) and (B). Subsection 262.11(c) allows for a potential applicant to request a meeting with the FRA Associate Administrator for Railroad Development or his designee to discuss a project the potential applicant is considering for financial assistance under this Part. Subsection 262.11(c) does not require that such a meeting occur, but it has been FRA's experience that pre-application meetings generally save the potential applicant both time and money, and, therefore, FRA strongly encourages potential applicants to schedule such a meeting. One commenter (New York DOT) suggests that FRA clarify whether an application must be filed by a state DOT. The eligible applicants are “States, including political subdivisions of a State as defined in subsection 20154(h)(3).” There is no requirement that applicants are limited to state Departments of Transportation. This same commenter also suggests that FRA address whether and how cost changes will be addressed. Cost changes can occur in any project and the typical grant process allows for them as long as the cost changes meet the specific criteria set out in the typical grant application and administration. The Web site, *www.grants.gov* provides general information. Specific information will be set out in each individual grant agreement. Section 262.13 Matching Requirements This section is reprinted entirely from SAFETEA-LU and can be found at 49 U.S.C. 20154(e). It sets out the requirement that a State or other non-Federal entity shall pay at least ten
(10)percent of the shared costs of a project that is funded in part by a grant awarded under this Part. The ten percent may be in cash or in the form of the following in-kind contributions: • Real property or tangible personal property, whether provided by the State (as defined by this Part) or a person for the State; • The services of employees of the State or other non-Federal entity, calculated on the basis of costs incurred by the State or other non-Federal entity for the pay and benefits of the employees, but excluding overhead and general administrative costs; • A payment of any costs that were incurred for the project before the filing of an application for a grant for the project under this section, and any in-kind contributions that were made for the project before the filing of the application, if and to the extent that the costs were incurred or in-kind contributions were made to comply with a provision of a statute required to be satisfied in order to carry out the project. Finally, this section states that FRA will consider the feasibility of seeking financial contributions or commitments from private entities involved with the project in proportion to the anticipated public and private benefits that accrue to such entities from the project. FRA's NPRM invited comments and suggestions from commenters on how FRA can best accomplish this requirement. Because project sponsors are most directly involved and familiar with the details of the proposed projects and are required to submit a description of the anticipated public and private benefits associated with each rail line relocation or improvement project as a part of the application process, the requirement to seek financial contributions or commitments from private entities might best be accomplished by the project sponsors in assembling the overall financial package to complete the project. This could then be one of the factors evaluated by the FRA in deciding whether to proceed with a project or in selecting one project over another should there be more than one project competing for any available funding. Several commenters (City of Sacramento DOT, Sacramento Regional Transit, County of Sacramento, Sacramento Area Council of Governments) wanted FRA to clarify whether non-Federal matches in excess of 10% will be “rewarded” in the selection criteria. Non-federal matches in excess of the 10% requirement will be evaluated on a case-by-case basis. As for the concept of being “rewarded,” the matching percentage is one of many variables that might have an effect on a particular application. FRA does not, at this time, plan to give an across-the-board advantage. Each application will judged on the entire spectrum of factors and criteria. One commenter (the Gateway Rural Improvement Pilot Association (VT)) wanted FRA to establish a provision similar to the “Tapered Match” allowed under FHWA's Innovative Finance program by which projects can provide their matching share at any point during the project. As a side note, GRIP was concerned that FRA recognize the contribution of costs incurred prior to the FRA grant under subsection 262.13 and the time pressures faced by the applicants. There is currently no language in either the statute or Part 262 that calls for the match to be made by a certain time and FRA will consider these issues in evaluating individual applications. Section 262.15 Environmental Assessment This section clearly states that, in order for FRA to award funding for any project, the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* )
(NEPA)and related laws, regulations and orders must be complied with. NEPA mandates that before any “major” Federal action can take place, the Federal entity performing the action must complete an appropriate environmental review. The use of Federal funds in a project triggers the NEPA process. Thus, because FRA will be providing Federal funds to grantees for local rail line relocation and improvement projects, a completed NEPA review will be required before the agency decides to approve any project. FRA may request that a State provide environmental information and/or fund the NEPA review, either directly (if the entity administering the grant is a State agency with statewide jurisdiction) or through a third party contract. FRA's NEPA compliance will be governed by FRA's “Procedures for Considering Environmental Impacts” (65 Fed. Reg. 28545) and the NEPA regulations of the Council on Environmental Quality (40 CFR Part 1500). This section also notes several of the other environmental and historic preservation statutes that must be considered during the NEPA review. This is not, however, a comprehensive list of all environmental and historic preservation statutes and implementing regulations that must be considered, but instead merely illustrative of the issues that a State may be required to address in the environmental review. Several commenters (City of Marceline, MO, American Public Transportation Association) commented that it may be unnecessarily restrictive to require that NEPA review be complete before FRA decides to approve the project for funding. The commenter suggested incrementally approving funding for the preliminary engineering and environmental compliance and then fully funding a project after these steps are completed and approved. Additionally, the commenter suggested that FRA provide grants that assist in the project development process, including the NEPA process. Another commenter (the National Capital Planning Commission) wanted subsection 262.15 to include a requirement that environmental and historic documents be completed and approved by the Administrator prior to a decision by FRA to approve a project for physical construction. As FRA understands it, the commenters want the environmental assessment costs to be eligible costs before a decision is made as to whether FRA will approve actual physical construction funding for a particular project. FRA believes that some of the confusion arose from including NEPA work in the definition of construction in subsection 262.3 and then stating in subsection 262.15 that FRA will not fund any construction until the NEPA work is completed. FRA understands that NEPA work is more properly classified as pre-construction work. Thus, the NPRM suggested that the project proponent must fund NEPA work up front and then FRA will reimburse the proponent if FRA decides to go forward with construction on the project. FRA understands that this is a risky approach for the proponent especially if the proponent is unsure how many applications FRA has received or how their project might fit in competition with others (although the risk might be minimized if the applicants paid for the compliance work themselves and applied this cost to the 10% matching requirement if a grant is awarded). NCPC's suggestion is to clearly tie subsection 262.7(b) back to the definition of construction in subsection 262.3 to be sure NEPA costs are included (which FRA has agreed to as explained earlier) and to revise subsection 262.15 to limit the need to secure the Administrator's approval to actual physical construction with the implicit assumption that NEPA work that the statute (and FRA's implementing regulations) call “construction” could proceed and be reimbursed in advance of final NEPA approval. An alternative approach that FRA believes is an easier solution is to clarify in the relevant subsection(s) that FRA will in appropriate circumstances pay for NEPA work in advance of a decision to actually construct a project but with the caveat that FRA's decision to fund NEPA work does not guarantee or express any FRA decision with respect to the project generally. Section 262.17 Combining Grant Awards This section is reprinted entirely from SAFETEA-LU and can be found at 49 U.S.C. 20154(f). It allows for two or more States, but not political subdivisions of States, pursuant to an agreement entered into by the States, to combine any part of the amounts provided through grants for a project under this Part, provided the project will benefit each State and the agreement is not a violation of a law of any of the States. SAFETEA-LU specifically excludes political subdivisions of States from taking advantage of this section, but does not exclude the District of Columbia. FRA did not receive any substantive comments or suggested revisions to this section though the Idaho Transportation Department and the Spokane Regional Transportation Council urged FRA to maintain this subsection as drafted. Subsection 262.17 remains unchanged from the NPRM. Section 262.19 Closeout Procedures The “grant closeout” is the process by which the FRA and grantee perform final actions that document completion of work, administrative requirements, and financial requirements of the grant agreement. FRA, the grantee, and any other involved parties, such as an auditor, need to fulfill these requirements promptly in order to avoid unnecessary delays in grant closeout. FRA will notify the grantee in writing 30 days before the end of the grant period regarding what final reports are due, the dates by which they must be received, and where they must be submitted. The grantee will be required to submit the reports within 90 days after the expiration or termination of the grant. Copies of any required forms and instructions for their completion will be included with the notification. The financial, performance, and other reports required as a condition of the grant will generally include the following: • Final performance or progress report; • Financial Status Report (SF-269) or Outlay Report and Request for Reimbursement for Construction Programs (SF-271); • Final Request for Payment; • Federally-owned Property Report. A grantee must submit an inventory of all Federally-owned property (as opposed to property acquired with grant funds) for which it is accountable and request disposition instructions from FRA if the property is no longer needed. Upon receipt of this information, FRA will determine whether any additional funds are due the grantee or whether the grantee needs to refund any funds. FRA will also determine final costs and, if necessary, make upward or downward adjustments to any allowable costs within 90 days after receipt of reports and make prompt payment to the grantee for any unreimbursed allowable costs. If the grantee has received more funds than the total allowable costs, the grantee must immediately refund to FRA any balance of unencumbered cash advanced that is not authorized to be retained for use on other grants. FRA will notify the grantee in writing that the grant has been closed out. The grant agreement will in most cases be ready to be closed out before receipt of the single audit report that covers the period of the grant performance. Therefore, the grant will be closed administratively without formal audit. The grant may be reopened later to resolve subsequent audit findings. The closeout of a grant does not affect FRA's right to disallow costs and recover funds on the basis of a later audit or other review and the grantee's obligation to return any funds due as a result of later refunds, corrections, or other transactions. FRA did not receive any comments on this section and it remains unchanged from the NPRM. IV. Regulatory Impact A. Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures This rulemaking action is economically significant for purposes of review under U.S. Department of Transportation regulatory policies and procedures. However, it is not economically significant under E.O. 12866 and has not been submitted for OMB review. This section summarizes the estimated economic impact of the rule. As mandated by 49 U.S.C. 20154, this rulemaking establishes the process for applying for capital grants for local rail line relocation and improvement projects. This regulation will affect only those entities that voluntarily elect to apply for the capital grants under section 20154 and those that are selected to receive a grant under the program. It will not impose any direct, involuntary, un-reimbursed costs on those entities not applying for the program. Prospective applicants will normally already have available the information needed to prepare applications for funding so these costs should be minimal. FRA has prepared a final evaluation of the economic impact of this regulatory action. A copy of this document has been placed in the docket for this rulemaking. As noted in the NPRM, the only costs imposed on the participants (States and political subdivisions) are the costs associated with completing an application and providing the required minimum ten percent non-Federal funding match and these are the costs that FRA has considered in the evaluation of economic impact. In the NPRM, FRA requested comments, information, and data from the public and potential users concerning the economic impact of implementing this rule. Among the 28 comments received in response to the NPRM, FRA received no direct comments about the costs of the application process. Commenters did express concern about the need to provide preliminary engineering and environmental compliance documentation before FRA decides to approve a project for funding. The final rule adds options for funding these compliance tasks. Whether or not applicants pay for these costs or are reimbursed by FRA, from a national point of view real resources will be expended for performing these tasks. The NPRM regulatory evaluation accounted for these costs and they remain unchanged in the final regulatory evaluation. Note that the burden of funding these compliance tasks would be reduced for those applicants that are reimbursed under the new options in the final rule in subsection 262.15. FRA estimates that implementation of the application requirements contained in this rule could cost approximately $714,261 (PV, 7%), if funds are appropriated for this program and government jurisdictions apply for grants. FRA believes that these application costs would be justified by the benefits associated with better allocation of grant funds to improve safety and quality of life. This rule is not anticipated to adversely affect, in a material way, any sector of the economy. This rulemaking sets forth eligibility and selection criteria for project proposals in the local rail line relocation and improvement projects capital grants program, which will result in only minimal cost to program applicants. In addition, this rule would not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. B. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 5 U.S.C. 601-612) requires a review of rules to assess their impact on small entities. In the NPRM, FRA was unable to determine whether the rule was expected to have significant economic impact on a substantial number of small entities because no funds were appropriated to the program and FRA was unable to determine what projects would be funded. In response to the NPRM, the Small Business Administration
(SBA)communicated to the FRA that it needed to certify the rule as not having a significant economic impact on a substantial number of small entities, or prepare a Regulatory Flexibility Analysis (RFA). FRA has revised the regulatory flexibility determination and certifies that the final rule is not expected to have a significant economic impact on a substantial number of small entities. For this rule, the relevant definition of small entities is based on population served. As defined by the SBA, this term means governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000. States are not included in the definition of small entity set forth in 5 U.S.C. 601, but political subdivisions of States may well fall into this category. Out of 28 entities that expressed interest in the grant program as indicated by comments to the docket, two were small entities. Only one small entity, the City of Marceline, MO, expressed concern regarding the impact of the application requirements. Given the fact that Congress appropriated no funding for the program in FY 2006 and FY 2007, FRA is unsure how many additional small entities might potentially apply. FRA notes that both of the small entities that did comment are working with larger governmental units or States serving populations larger than 50,000. Given these working relationships, FRA believes that is reasonable that a larger governmental unit or State would provide assistance or other resources in applying for the grants. FRA notes that of the $20,040,200 (of the $350 million authorized) that was appropriated in FY 2008, $5,135,200 consists of non-competitive (non-discretionary) grants. Nine separate projects were identified in the Conference Report accompanying the Transportation, Housing and Urban Development and Related Agencies Appropriations Act, 2008, included as Division K of the Consolidated Appropriations Act, 2008 (Pub. L. No. 101-161). Of the nine projects identified, three of the communities are considered small entities: The cities of Pierre, SD, population 14,095, Barron, WI, population 3,162 and Adams County, CO, population 47,475. The city of Terre Haute, IN, population of 56,893 exceeds the small governmental threshold, but is near it. Similar to the small entities that commented, these two cities and one county would in all likelihood be working with larger governmental units or States serving populations larger than 50,000. The new funding options in subsection 262.15 (discussed above) for preliminary engineering and environmental compliance potentially reduce the burden for these tasks on small entities as they may receive grant money for these tasks, if approved. The number of small entities that commented is relatively small, and FRA recognizes that there is likely to be additional interest now that funds have been appropriated to the program. The group of entities that provided comments includes several States that expressed support for the small jurisdictions they govern. These comments indicate that the State would assist with the grant application, reducing the rule's impact on small entities. Other provisions of the rule also mitigate the rule's impact on all entities, including small entities. One of these provisions is permitting the grant applicant to request a meeting with the FRA Associate Administrator for Railroad Development (or his/her designee), thus facilitating the application process. It should also be noted that participation in the local rail line relocation and improvement projects capital grants program is voluntary. The statute requires a State or other non-Federal entity to provide at least ten percent of the shared cost of a project funded under this program. To the extent a small entity was providing that non-Federal share, the impact would be considered by the small entity in deciding whether to file an application under the program. FRA views it as unlikely that a small entity such as a local government would be disproportionately impacted by the rule. The capital grants for the rail line relocation and improvement program could certainly provide benefits to small entities, such as local governments (political subdivisions of a State). The program could provide economic, safety, and environmental benefits if funding for projects is approved. A copy of the complete Regulatory Flexibility Assessment has been placed in the docket for this rulemaking. C. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) addresses the collection of information by the Federal government from individuals, small businesses and State and local governments and seeks to minimize the burdens such information collection requirements might impose. A collection of information includes providing answers to identical questions posed to, or identical reporting or record-keeping requirements imposed on ten or more persons, other than agencies, instrumentalities, or employees of the United States. This final rule contains information requirements that would apply to States or political subdivisions of States that file applications for Federal funding for local rail line relocation and improvement projects. The information collection requirements in this final rule have been submitted for approval to the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 *et seq.* The sections that contain the new information collection requirements and the estimated time to fulfill each requirement are as follows: CFR Section—49 Respondent universe Total annual responses Average time per response Total annual burden hours Total annual burden cost 262.11—Application Process 50 States 18 applications 580 hours/290 hours 7,830 1 $0 —Requests for Meeting with FRA 50 States 5 requests 30 minutes 3 129 —Meeting Discussions 50 States 5 meetings 2 hours 10 730 262.15—Environmental Assessment 50 States 18 documents 200 hours 3,600 158,760 —Consultations with FRA before a State begins environmental or historic preservation analysis 50 States 9 consultation 2 hours 18 1,314 262.17—Combining Grant Awards 50 States 1 agreement 10 hours 10 730 262.19—Close-Out Procedures 50 States 18 documents 6 hours 108 4,644 —Inspection of All Construction Report 50 States 18 reports 80 hours 1,440 105,120 1 Cost incl. in RIA. All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, 725 17th St., NW., Washington, DC 20503, attn: FRA Desk Officer. Comments may also be sent to the Office of Information and Regulatory Affairs
(OIRA)at OMB via e-mail at the following address: *oira_submissions@omb.eop.gov.* OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in the **Federal Register** . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the **Federal Register** . D. Environmental Impact FRA has evaluated these regulations in accordance with its procedures for ensuring full consideration of the potential environmental impacts of FRA actions, as required by the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* )
(NEPA)and related directives ( *see* FRA Policy Statement on Procedures for Considering Environmental Impacts, 64 Fed.Reg. 28545). FRA has concluded that the issuance of this final rule, which establishes regulations governing the awarding of grants for local rail line relocation and improvement projects, does not have a potential impact on the environment and does not constitute a major Federal action requiring an environmental assessment or environmental impact statement. Because all projects undertaken with grants administered under this section will involve Federal funding, appropriate NEPA analyses, including studies of any potential environmental justice issues, will be undertaken in connection with individual project approvals. E. Federalism Implications FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132, issued on August 4, 1999, which directs Federal agencies to exercise great care in establishing policies that have federalism implications. *See* 64 FR 42355. This final rule will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government. This final rule will not have federalism implications that impose any direct compliance costs on state and local governments. There will be costs associated with the submission of applications, but they are discretionary and will only be incurred should a state or local government wish to apply for funding. Otherwise, this final rule directs how Federal funds will go to the States, and thus, there are no federalism implications. F. Unfunded Mandates Reform Act of 1995 Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on state, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $132,300,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on state, local, and tribal governments and the private sector. There are no “regulatory actions” contemplated within the meaning of the Unfunded Mandates Reform Act of 1995. One of the purposes of the Unfunded Mandates Reform Act of 1995 is “to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State, local, and tribal governments without adequate Federal funding[.]” 2 U.S.C. 1501(2). The statute which authorizes this grant program does not fall into the category of an unfunded mandate because it does not contain any mandates (applicants freely choose whether to apply for grants) nor is the statute “legislation containing significant Federal intergovernmental mandates without providing adequate funding to comply with such mandates[.]” 2 U.S.C. 1501(6); 49 CFR 20154. If Congress does not appropriate funds for the program, then no grants will be made. If Congress does appropriate funds, as it has for FY 2008, then grant applications will be requested and presumably grant monies will be disbursed. The only requirements in this final rule for funding other than grant funds provided to state and local governments is the ten percent matching requirement. That requirement, however, is specifically set forth in § 9002 of SAFETEA-LU and FRA need not assess its effect. This final rule, therefore, will not result in the expenditure by state, local, or tribal governments, in the aggregate, of $132,300,000 or more in any one year, and thus preparation of such a statement is not required. G. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” See 66 FR 28355 (May 22, 2001). Under the Executive Order a “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and
(ii)is likely to have a significant adverse effect on the supply, distribution, or use of energy; or
(2)that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this final rule in accordance with Executive Order 13211. FRA has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this final rule is not a “significant energy action” within the meaning of the Executive Order. H. Privacy Act Statement Anyone is able to search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc). You may review DOT's complete Privacy Act Statement published in the **Federal Register** on April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or you may visit *http://www.dot.gov/privacy.html* . List of Subjects in 49 CFR Part 262 Grants and rail line relocation and improvement projects. V. The Final Rule For the reasons discussed in the preamble, the Federal Railroad Administration is adding Part 262 to Title 49, Code of Federal Regulations to read, as follows: PART 262—IMPLEMENTATION OF PROGRAM FOR CAPITAL GRANTS FOR RAIL LINE RELOCATION AND IMPROVEMENT PROJECTS Table of Contents for Part 262 Sec. 262.1 Purpose. 262.3 Definitions. 262.5 Allocation requirements. 262.7 Eligibility. 262.9 Criteria for selection of projects. 262.11 Application process. 262.13 Matching requirements. 262.15 Environmental assessment. 262.17 Combining grant awards. 262.19 Close-out procedures. Authority: 49 U.S.C. 20154 and 49 CFR 1.49. § 262.1 Purpose. The purpose of this part is to carry out the statutory mandate set forth in 49 U.S.C. 20154 requiring the Secretary of Transportation to promulgate regulations implementing a capital grants program to provide financial assistance for local rail line relocation and improvement projects. § 262.3 Definitions. *Administrator* means the Federal Railroad Administrator, or his or her delegate. *Allowable Costs* means those project costs for which Federal funding may be expended under this part. Only construction and construction-related costs will be allowable. *Construction* means supervising, inspecting, demolition, actually building, and incurring all costs incidental to building a project described in § 262.9 of this part, including bond costs and other costs related to the issuance of bonds or other debt financing instruments and costs incurred by the Grantee in performing project related audits, and includes:
(1)Locating, surveying, and mapping;
(2)Track and related structure installation, restoration, and rehabilitation;
(3)Acquisition of rights-of-way;
(4)Relocation assistance, acquisition of replacement housing sites, and acquisition and rehabilitation, relocation, and construction of replacement housing;
(5)Elimination of obstacles and relocation of utilities; and
(6)Any other activities as defined by FRA, including architectural and engineering costs, and costs associated with compliance with the National Environmental Policy Act, National Historic Preservation Act, and related statutes, regulations, and orders. *FRA* means the Federal Railroad Administration. *Improvement* means repair or enhancement to existing rail infrastructure, or construction of new rail infrastructure, that results in improvements to the efficiency of the rail system and the safety of those affected by the system. *Non-Federal Share* means the portion of the allowable cost of the local rail line relocation or improvement project that is being paid for through cash or in-kind contributions by a State or other non-Federal entity or any combination thereof. *Private Entity* means any domestic or foreign nongovernmental for-profit or not-for-profit organization. *Project* means the local rail line relocation or improvement for which a grant is requested under this section. *Quality of Life* means the level of social, environmental and economic satisfaction and well being a community experiences, and includes factors such as first responders' emergency response time, impact on emergency services, accessibility to the disabled as required under the Americans with Disabilities Act and section 504 of the Rehabilitation Act of 1973 (as amended), school access, safety, traffic delay and congestion, the environment, grade crossing safety, and noise levels. *Real Property* means land, including land improvements, structures and appurtenances thereto, excluding movable machinery and equipment. *Relocation* means moving a rail line vertically or laterally to a new location. Vertical relocation refers to raising above the current ground level or sinking below the current ground level a rail line. Lateral relocation refers to moving a rail line horizontally to a new location. *Secretary* means the Secretary of Transportation. *State* except as used in § 262.17, means any of the fifty United States, a political subdivision of a State, and the District of Columbia. In § 262.17, *State* means any of the fifty United States and the District of Columbia. *Tangible personal property* means property, other than real property, that has a physical existence and an intrinsic value, including machinery, equipment and vehicles. § 262.5 Allocation requirements. At least fifty percent of all grant funds awarded under this section out of funds appropriated for a fiscal year shall be provided as grant awards of not more than $20,000,000 each. Designated, high-priority projects will be excluded from this allocation formula. FRA will adjust the $20,000,000 amount to reflect inflation for fiscal years beginning after fiscal year 2006 based on the materials and supplies component from the all-inclusive index of the *AAR Railroad Cost Indexes.* § 262.7 Eligibility.
(a)A State is eligible for a grant from FRA under this section for any construction project for the improvement of the route or structure of a rail line that either:
(1)Is carried out for the purpose of mitigating the adverse effects of rail traffic on safety, motor vehicle traffic flow, community quality of life, or economic development; or
(2)Involves a lateral or vertical relocation of any portion of the rail line.
(b)Only costs associated with construction as defined in § 262.3 will be considered allowable costs. § 262.9 Criteria for selection of projects. Applicants must submit evidence sufficient for the FRA to determine whether projects proposed for Federal investment are cost-effective in terms of the benefits achieved in relation to the funds expended. To that end, the FRA will consider the anticipated public and private benefits associated with each rail line relocation or improvement project. In evaluating applications, FRA will consider the following factors in determining whether to grant an award to a State under this part.
(a)The capability of the State to fund the rail line relocation project without Federal grant funding;
(b)The requirement and limitation relating to allocation of grant funds provided in § 262.5;
(c)Equitable treatment of various regions of the United States;
(d)The effects of the rail line, relocated or improved as proposed, on motor vehicle and pedestrian traffic, safety, community quality of life, and area commerce;
(e)The effects of the rail line, relocated as proposed, on the freight rail and passenger rail operations on the line;
(f)Any other factors FRA determines to be relevant to assessing the effectiveness and/or efficiency of the grant application in achieving the goals of the national program, including the level of commitment of non-Federal and/or private funds to a project and the anticipated public and private benefits. § 262.11 Application process.
(a)All grant applications for opportunities funded under this subsection must be submitted to FRA through *www.grants.gov.* Opportunities to apply will be posted by FRA on *www.grants.gov* only after funds have been appropriated for Capital Grants for Rail Line Relocation Projects. The electronic posting will contain all of the information needed to apply for the grant, including required supporting documentation.
(b)In addition to the information required with an individual application, a State must submit a description of the anticipated public and private benefits associated with each rail line relocation or improvement project described in § 262.7(a)(1) and
(2)and the State's assessment of how those benefits outweigh the costs of the proposed project. The determination of such benefits shall be developed in consultation with the owner and user of the rail line being relocated or improved or other private entity involved in the project. The State should also identify any financial contributions or commitments it has secured from private entities that are expected to benefit from the proposed project.
(c)Potential applicants may request a meeting with the FRA Associate Administrator for Railroad Development or his designee to discuss the nature of the project being considered. § 262.13 Matching requirements.
(a)A State or other non-Federal entity shall pay at least ten percent of the construction costs of a project that is funded in part by the grant awarded under this section.
(b)The non-Federal share required by paragraph
(a)of this section may be paid in cash or in-kind. In-kind contributions that are permitted to be counted under this section are as follows:
(1)A contribution of real property or tangible personal property (whether provided by the State or a person for the state) needed for the project;
(2)A contribution of the services of employees of the State or other non-Federal entity or allowable costs, calculated on the basis of costs incurred by the State or other non-Federal entity for the pay and benefits of the employees, but excluding overhead and general administrative costs;
(3)A payment of any allowable costs that were incurred for the project before the filing of an application for a grant for the project under this part, and any in-kind contributions that were made for the project before the filing of the application; if and to the extent that the costs were incurred or in-kind contributions were made, as the case may be, to comply with a provision of a statute required to be satisfied in order to carry out the project.
(c)In determining whether to approve an application, FRA will consider the feasibility of seeking financial contributions or commitments from private entities involved with the project in proportion to the expected benefits determined under § 262.11(b) that accrue to such entities from the project. § 262.15 Environmental assessment.
(a)The provision of grant funds by FRA under this Part is subject to a variety of environmental and historic preservation statutes and implementing regulations including, but not limited to, the National Environmental Policy Act
(NEPA)(42 U.S.C. 4332 *et seq.* ), Section 4(f) of the Department of Transportation Act (49 U.S.C. 303(c)), the National Historic Preservation Act (16 U.S.C. 470(f)), and the Endangered Species Act (16 U.S.C. 1531). Appropriate environmental and historic documentation must be completed and approved by the Administrator prior to a decision by FRA to approve a project for physical construction. FRA's “Procedures for Considering Environmental Impacts,” as posted at *http://www.fra.dot.gov/us/content/252,* the NEPA regulation of the Council on Environmental Quality (40 CFR part 1500) and the Advisory Council on Historic Preservation Protection of Historic Properties regulation (36 CFR part 800) will govern FRA's compliance with applicable environmental and historic preservation review requirements.
(b)States have two options for proceeding with environmental/historic preservation reviews. A State may file an application under subsection § 262.11 seeking funds for preliminary design and environmental/historic preservation compliance for a potentially eligible project and FRA will review and decide on the application as outlined in this Part. Alternatively, a State may proceed with and fund any costs associated with environmental/historic preservation reviews (including environmental assessments and categorical excisions, but not environmental impact statements since there are restrictions on what types of entities can manage an environmental impact statement) and seek reimbursement from FRA for these costs to the extent they otherwise qualify as allowable costs if FRA later approves the project for physical construction and enters into a grant agreement with the State. If a State pays for the compliance work itself, it may apply this cost to the 10% matching requirement if a grant is awarded. Applicants should consult with FRA before beginning any environmental or historic preservation analysis. § 262.17 Combining grant awards. Two or more States, but not political subdivisions of States, may, pursuant to an agreement entered into by the States, combine any part of the amounts provided through grants for a project under this section provided:
(1)The project will benefit each of the States entering into the agreement; and
(2)The agreement is not a violation of the law of any such State. § 262.19 Close-out procedures.
(a)Thirty days before the end of the grant period, FRA will notify the State that the period of performance for the grant is about to expire and that close-out procedures will be initiated.
(b)Within 90 days after the expiration or termination of the grant, the State must submit to FRA any or all of the following information, depending on the terms of the grant:
(1)Final performance or progress report;
(2)Financial Status Report (SF-269) or Outlay Report and Request for Reimbursement for Construction Programs (SF-271);
(3)Final Request for Payment (SF-270);
(4)Patent disclosure (if applicable);
(5)Federally-owned Property Report (if applicable)
(c)If the project is completed, within 90 days after the expiration or termination of the grant, the State shall complete a full inspection of all construction work completed under the grant and submit a report to FRA. If the project is not completed, the State shall submit a report detailing why the project was not completed.
(d)FRA will review all close-out information submitted, and adjust payments as necessary. If FRA determines that the State is owed additional funds, FRA will promptly make payment to the State for any unreimbursed allowable costs. If the State has received more funds than the total allowable costs, the State must immediately refund to the FRA any balance of unencumbered cash advanced that is not authorized to be retained for use on other grants.
(e)FRA will notify the State in writing that the grant has been closed out. Issued in Washington, DC, on June 24, 2008. Joseph H. Boardman, Federal Railroad Administrator. Note: THIS APPENDIX WILL NOT APPEAR IN THE CODE OF FEDERAL REGULATIONS. BILLING CODE 4910-06-P Appendix A to Part 262—FRA Regional Boundaries ER11JY08.006 [FR Doc. E8-15160 Filed 7-10-08; 8:45 am] BILLING CODE 4910-06-C DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 594 [Docket No. NHTSA-2007-0037; Notice 2] RIN 2127-AK10 Schedule of Fees Authorized by 49 U.S.C. 30141 Offer of Cash Deposits or Obligations of the United States in Lieu of Sureties on DOT Conformance Bonds AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT. ACTION: Final rule. SUMMARY: This document amends NHTSA's regulations that prescribe fees authorized by 49 U.S.C. Sec. 30141 for various functions performed by the agency with respect to the importation of motor vehicles that are not originally manufactured to conform to all applicable Federal motor vehicle safety and bumper standards. An importer must file with U.S. Customs and Border Protection
(CBP)a Department of Transportation
(DOT)conformance bond at the time that a nonconforming motor vehicle is offered for importation into the United States, or in lieu of such a bond, the importer may post cash deposits or obligations of the United States to ensure that the vehicle will be brought into conformance with all applicable standards within 120 days from the date of importation, or will be exported from, or abandoned to, the United States. To avoid the costs of a DOT conformance bond, some importers have attempted to post cash deposits, which would relieve the importers of the bonding costs, but cause the agency to expend considerable resources. The amendments adopted today establish a fee of $459.00 that will permit the government to recover all the direct and indirect costs incurred by the agency in processing cash deposits or obligations of the United States that are furnished in lieu of a DOT conformance bond. DATES: *Effective date:* The effective date for this final rule is October 1, 2008. *Petitions for reconsideration:* Petitions for reconsideration of this final rule must be received by NHTSA not later than August 25, 2008. ADDRESSES: Petitions for reconsideration of this final rule must refer to the docket and notice numbers set forth above and be submitted to the Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. In addition, a copy of the petition for reconsideration must be submitted to the docket number cited in the heading above by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting information. • *Mail Addressed to:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery or Courier:* West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except for Federal holidays. • *Fax:* 202-493-2251. FOR FURTHER INFORMATION CONTACT: For non-legal issues: Coleman Sachs, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590 (202-366-3151). For legal issues: Michael Goode, Office of Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590 (202-366-5238). SUPPLEMENTARY INFORMATION: I. Introduction As described in the notice of proposed rulemaking (NPRM), subject to certain exceptions, 49 U.S.C. 30112(a) prohibits any person from importing into the United States a motor vehicle manufactured on or after the date that an applicable Federal motor vehicle safety standard (FMVSS) takes effect unless the vehicle complies with the standard and is so certified by its manufacturer. 72 FR 65532 (November 21, 2007). One of the exceptions to this prohibition is found in 49 U.S.C. 30141. That section permits an importer that is registered with NHTSA (a “registered importer”) to import a motor vehicle that was not originally manufactured to conform to all applicable FMVSS, provided NHTSA has decided that the vehicle is eligible for importation. Under the criteria that are specified in section 30141 for these decisions, a motor vehicle is not eligible for importation unless, among other things, it is capable of being altered to comply with all applicable FMVSS. See 49 U.S.C. 30141(a)(1)(A)(iv) and (B). II. Requirements for Bonding Once NHTSA decides that a motor vehicle is eligible for importation, a vehicle of the same make, model, and model year can be imported by a registered importer
(RI)or by a person who has executed a contract with an RI to bring the vehicle into compliance with all applicable FMVSS. For vehicles that are imported in this fashion, a DOT conformance bond (Form HS-474), in an amount equivalent to 150 percent of the declared value of the vehicle, must be furnished to CBP at the time of importation to ensure that the necessary modifications are completed within 120 days from the date of entry or, if conformance is not achieved, for the vehicle to be delivered to the Secretary of Homeland Security for export at no cost to the United States, or for the vehicle to be abandoned to the United States. See 49 CFR 591.6(c). The DOT conformance bond must be underwritten by a surety that possesses a certificate of authority to underwrite Federal bonds. See 49 CFR 591.8(c), referencing a list of certificated sureties at 54 FR 27800, June 30, 1989. In lieu of sureties on a DOT conformance bond, an importer may offer United States money, United States bonds (except for savings bonds), United States certificates of indebtedness, Treasury notes, or Treasury bills (hereinafter referred to as “cash deposits”) in an amount equal to the amount of the bond. See 49 CFR 591.10(a). As stated in the NPRM, in recent years some RIs have encountered difficulty in obtaining DOT conformance bonds underwritten by certificated sureties. To achieve the entry of the nonconforming vehicles they have sought to import, these RIs have had to resort to furnishing NHTSA with cash deposits in lieu of sureties on a DOT conformance bond. Other RIs have attempted to post cash deposits to avoid the cost of procuring a DOT conformance bond. The receipt, processing, handling, and disbursement of the cash deposits that have been tendered by RIs have caused the agency to consume a considerable amount of staff time and material resources. III. Fees Authorized by 49 U.S.C. 30141 As detailed in the NPRM, NHTSA is authorized under 49 U.S.C. 30141(a)(3) to establish an annual fee requiring RIs to pay for the costs of carrying out the RI program. The agency is also authorized under this section to establish fees to pay for the costs of processing the conformance bonds that RIs provide, and fees to pay for the costs of making agency decisions relating to the importation of noncomplying motor vehicles and equipment. Because NHTSA's acceptance of the cash deposits is a necessary predicate to the release of the vehicle into the commerce of the United States, NHTSA has concluded that the expense incurred by the agency to receive, process, handle, and disburse cash deposits may be treated as part of the bond processing cost, for which NHTSA is authorized to set a fee under 49 U.S.C. 30141(a)(3)(A). Even if such authority did not exist in Chapter 301 of Title 49, U.S. Code, the Independent Offices Appropriation Act of 1952, 31 U.S.C. Sec. 9701, provides ample authority for NHTSA to impose fees that are sufficient to recover the agency's full costs to receive, process, handle, and disburse cash deposits. By performing these tasks, NHTSA is performing a specific service for an identifiable beneficiary that can form the basis for the imposition of a fee under 31 U.S.C. Sec. 9701. Courts have long recognized that Federal agencies may impose fees under section 9701 for providing comparable services to regulated entities. See, e.g., *Seafarers International Union of North America* v. *U.S. Coast Guard* , 81 F.3d 179, 183 (D.C. Cir. 1996) (finding the Coast Guard authorized to charge reasonable fees for processing applications for merchant mariner licenses, certificates, and work documents); *Engine Manufacturers Association* v. *E.P.A.,* 20 F.3d 1177, 1180 (D.C. Cir. 1994) (finding the E.P.A. authorized to impose a fee to recover its costs for testing vehicles and engines for compliance with the emission standards of the Clean Air Act); and *National Cable Television Association, Inc.* v. *F.C.C.,* 554 F.2d 1094, 1101 (D.C. Cir. 1976) (finding the F.C.C. authorized to impose fees for issuing certificates of compliance to cable television operators). In view of the language and judicial construction of 31 U.S.C. 9701, NHTSA is relying on this provision as an independent source of authority for the fee to cover the agency's cost of processing cash deposits. IV. Fee for Processing Cash Deposits Although the fees described above have permitted NHTSA to recover the costs it incurs in administering certain aspects of the RI program, other services that NHTSA provides to importers of nonconforming vehicles have gone unreimbursed. One such service is the receipt, processing, handling, and disbursement of cash deposits submitted by importers and RIs in lieu of sureties on DOT conformance bonds. The amendments adopted in this final rule will permit the agency to collect a fee to recover its costs in providing these services. V. Fee Computation As noted in the NPRM, NHTSA computes the fees that it collects under the authority of 49 U.S.C. 30141 on the basis of all direct and indirect costs incurred by the agency in performing the function for which the fee is charged. In the **Federal Register** notice proposing the original schedule of fees that was adopted in Part 594, the agency observed that this approach was consistent with the manner in which other agencies have computed user fees under the Independent Offices Appropriation Act, 31 U.S.C. 9701, and the Consolidated Omnibus Budget Reconciliation Act, Public Law 99-272. See 54 FR 17792, 17793 (April 25, 1989). NHTSA specified in the 1989 NPRM proposing rules for the RI program that “the fees imposed by Part 594 would include the agency's best direct and indirect cost estimates of the man-hours involved in each activity, on both the staff and supervisory levels, the costs of computer and word processor usage, costs attributable to travel, salary, and benefits, and maintenance of work space,” as appropriate for each fee. See 54 FR 17795 (April 25, 1989). Consistent with this approach, the agency considered its direct and indirect costs in calculating the fee for the review, processing, handling, and disbursement of cash deposits submitted by importers and RIs in lieu of sureties on a DOT conformance bond. In the NPRM, the agency proposed a fee of $598.00 to recover the expenses the government incurs in the performance of these functions. In computing this proposed fee, the agency estimated that it would take 60 minutes of a government employee's time to deliver the funds provided by importers and RIs to a bank for deposit in the agency's account and an additional 60 minutes to withdraw those funds. This estimate was based on the need for the funds to be deposited in a non-interest bearing commercial account for which the agency would not be charged any transactional fees. The bank in which the agency had established such an account was in downtown Washington, DC, some distance from the DOT Headquarters Building, requiring transit time for the deposit and withdrawal to be made. Following publication of the NPRM, the agency was able to open a non-interest bearing commercial account for which it will not be charged any transactional fees at a bank in close proximity to the new DOT Headquarters building in the Southeast Federal Center. Given the location of this bank, the agency estimates that it will take 15 minutes of an employee's time to bring the importer's cash deposit to the bank, wait there for the transaction to be completed, and return to the office and an additional 15 minutes to go to the bank, wait for a cashier's check payable to the importer to be drawn, and return to the office once the agency receives satisfactory evidence that all necessary conformance modifications have been performed on the vehicle for which the cash deposit was made. As a result, the total amount of staff time needed to accomplish these tasks has been reduced from 2 hours to 30 minutes. Calculating the charge for this time at the rate of $92.64 per hour, this will result in a reduction of $138.96 from the $598.00 fee originally proposed. Accounting for this difference, NHTSA is adopting a fee of $459.00 to recover the costs it incurs for each vehicle imported during FY 2009, for which the importer or RI submits a cash deposit in lieu of a DOT conformance bond. This fee will have to be tendered with each cash deposit submitted to the agency in lieu of sureties on a DOT conformance bond. The factors that the agency has taken into account in establishing the fee, including time expended by agency personnel, hourly rates for their services, and other direct and indirect costs, are detailed in a chart included in Appendix A of this notice. VI. Response to Comment The NPRM solicited comments from interested members of the public. One comment was submitted in response to the NPRM. The substance of this comment, which was submitted by an RI, and the agency response to each point that it raised, are set forth below. A. General Observations The comment, in general, disputed whether the agency had accurately set forth in the analysis included in the NPRM the direct and indirect costs of processing cash deposits. The commenter expressed the opinion that some of the costs identified by the agency should be reduced or eliminated, especially in circumstances where importers already understand the obligations associated with importing a nonconforming motor vehicle, have previously submitted cash deposits in lieu of sureties on a DOT conformance bond, and have entered into formal agreements with the agency relating to those cash deposits in the past. In the NPRM, the agency stated that it considered its direct and indirect costs relating to administering cash deposits for the purposes of calculating the proposed fee. As further stated in the NPRM, the agency's direct costs included the estimated cost of contractor and professional staff time and direct costs including computer equipment and maintenance costs, telephone toll charges, and postage. To present the best available information, the agency included in the NPRM a detailed itemization of each step in the process for administering cash deposits, including the time spent by agency staff on each step and the cost associated with each step. We are aware that more or less staff time may actually be spent on processing a cash deposit in an individual circumstance, and that this could be influenced by the experience level of the importer. To be reasonable, the agency based its cost estimates on the average time its staff spent time accomplishing each step of the process and the direct and indirect costs associated with each step. More specific observations raised in the comment, and the agency's responses are set forth below. B. Importer Obligations The commenter stated that the agency should not charge for time that it expends in discussing with importers their obligations pertaining to cash deposits. The commenter also asked whether the agency would charge an importer for this time even if the importer should ultimately decide not to provide a cash deposit. We believe that importers must clearly understand their obligations relating to the submission of cash deposits before those importers enter into formal agreements with the agency. While agency personnel may expend more time explaining those obligations to a first time importer than to one who has previously submitted cash deposits, we believe that the average time shown in the analysis is reasonable. Naturally, an importer could only be expected to pay the fee for the processing of cash deposits if the importer actually submits a cash deposit to the agency. In circumstances where the importer discusses with the agency the prospect of making a cash deposit, but ultimately elects not to submit one, there would be no basis for assessing a fee and the agency would not seek to collect one. Nevertheless, in circumstances where the importer decides to go ahead and make a cash deposit, the time expended by the agency in discussing the preliminaries with the importer is part of the transaction and is fairly compensable. C. Toll Charges The commenter observed that the agency could email the formal agreement to the importer at no charge rather than having to incur toll charges by transmitting the agreement by facsimile. By doing so, the commenter contended that the agency could reduce the fee associated with this step in the process. In its analysis of the costs incurred by the agency for administering cash deposits, the agency identified three long-distance toll calls totaling $5.75 to reimburse the government for its expenses in transmitting the agreement by facsimile to the importer for signature and later notifying CBP and the importer by letter that the importation of the vehicle may proceed. While the commenter is correct that the agreement could be emailed to the importer, the agency incurs computer time costs, and any difference in the costs associated with either method of transmitting the agreement is *de minimis* . D. Formal Agreement The commenter noted that NHTSA has already developed the language incorporated into the agreement and that the importer is only required to fill in blank spaces with identifying information on itself and the nonconforming vehicle that it seeks to enter. The commenter further noted that after the importer completes and signs the agreement, it must be returned to the agency for signature by an official authorized to sign on the agency's behalf. In light of these formalities, the commenter observes that the agency should not charge the importer for the actions it takes at this step in the process. In its analysis, the agency estimated that it would take 10 minutes to prepare the formal agreement for transmittal to the importer. This total includes staff time expended to locate and retrieve the agreement from a computer hard drive, to review the document and make any changes to the agreement that may be required to accommodate the importer's unique circumstances, to print out a hard copy of the document, and to otherwise prepare the document for transmittal to the importer. Because agency resources are expended at this step in the process for the benefit of an individual importer, there is clear justification for the government to be reimbursed for those expenses. As noted in this analysis, the agency will not be charging importers for the time it originally expended to develop the agreement in the format now being used. E. Receipt and Transmittal of Cash Deposits The commenter asked why the agency is charging for receiving in the mail and transmitting to responsible agency staff, the cash deposit and formal agreement sent to the agency by an importer. As discussed above, the agency provided an itemization of its direct and indirect costs associated with each step of the process of administering cash deposits. The agency attributed 10 minutes of contractor time to processing mail containing the importer's cash deposit and delivering the cash deposit to agency staff. The agency attributed an additional 5 minutes of contractor time to receiving mail containing the formal agreement executed by the importer and delivering the signed agreement to agency staff. The difference in processing time is attributable to additional controls associated with the handling of cash and cash equivalents. Because the contactor time expended on these two occasions is a direct cost incurred by the agency in administering cash deposits, the agency is fully justified in obtaining reimbursement for this expense. F. Approval of Formal Agreement The commenter questioned whether it in fact takes six government employees 70 minutes to prepare and approve the agreement. As reflected in the first table in Appendix A to this notice, one government employee spends an average of 20 minutes preparing a memo to transmit the formal agreement up the chain of command and three managers spend an average of no more than 10 minutes each to review and forward the agreement for the signature of the NHTSA manager who is authorized by regulation to enter such agreements on the agency's behalf. Four agency employees are involved in this process and the total average time for all of these steps is 50 minutes. Because this is another direct cost incurred by the agency in processing cash deposits, the agency is fully justified in obtaining reimbursement for this cost. G. Importer Approval Letter The commenter questioned why the agency would use its resources to create and mail a letter notifying the importer that the agency representative has signed the formal agreement and that the agency has authorized the entry of the importer's vehicle. The importer stated that after both parties sign the formal agreement, the agency notifies CBP by letter that the importer's vehicle may be imported. The commenter stated that in lieu of creating a separate letter to the importer, the agency could send to the importer a courtesy copy of the letter it sends to CBP and eliminate the agency's cost to create the importer's letter. The agency believes that when an importer enters into an agreement with, and sends a cash deposit to the government, a proper practice is for the agency to provide a written acknowledgment that the agreement is in place and that the agency has deposited the importer's cash deposit into the non-interest bearing commercial bank account the agency established for holding these funds. The letter provides the importer with a written record that its funds are in the government's hands. The agency would be remiss in its responsibility as the custodian of those funds if it were not to provide the importer with this acknowledgment. This is another expense that the government is fully justified to collect. H. Disbursement of Cash Deposits The commenter questioned why the agency attributed 60 minutes of staff time to sending back to the importer a check in the amount of the cash deposit. As part of the analysis for the fee proposed in the NPRM, the agency estimated that it would take one hour of the NHTSA finance manager's time to travel to the bank, be issued a check drawn on the agency's account, and return to DOT headquarters. The agency stated in the NPRM that these tasks must be accomplished in person at the agency's designated bank by the NHTSA official authorized to withdraw funds from the agency's bank account. As explained in section V of this notice under the heading “Fee Computation,” the agency has now opened a non-interest bearing commercial account for which it will not be charged transactional fees at a bank that is close to the DOT Headquarters Building at the Southeast Federal Center in Washington, DC. This will reduce from one hour to 15 minutes the time needed to deliver the importer's cash deposit to the bank, and reduce from one hour to 15 minutes the time needed to withdraw that deposit once the agency receives satisfactory evidence that all needed conformance modifications have been completed on the vehicle for which the cash deposit was made. On account of this reduction in staff time needed to process a cash deposit, the agency will be charging $459.00 for that processing, as opposed to the $598.00 it originally proposed. No other issues were raised in the one comment submitted in response to the NPRM. As is evident from the above discussion, the agency has found no basis in the issues that were raised in the comment to make any other changes in the rule as originally proposed. VII. Statutory Basis for the Final Rule and Effective Date NHTSA is required under 49 U.S.C. 30141(e) to “review and make appropriate adjustments at least every 2 years in the amounts of the fees” relating to the registration of importers, the processing of bonds, and making decisions concerning the importation of nonconforming vehicles. The statute further requires the agency to “establish the fees for each fiscal year before the beginning of that year.” Fiscal Year 2009 begins on October 1, 2008. In the NPRM, we proposed to make this rule effective October 1, 2008, and did not receive any comments on this issue. Accordingly, the effective date of this final rule is October 1, 2008. VIII. Petitions for Reconsideration Petitions for reconsideration of this final rule must be received by NHTSA not later than the date specified in the “Dates: Petitions for reconsideration:” heading at the beginning of this notice. Petitions received after that date will be considered petitions filed by interested persons to initiate rulemaking pursuant to 49 U.S.C. Chapter 301. The petition must contain a brief statement of the complaint and an explanation as to why compliance with the final rule is not practicable, is unreasonable, or is not in the public interest. The statement and explanation together may not exceed 15 pages in length, but necessary attachments may be appended to the submission without regard to the 15-page limit. If it is requested that additional facts be considered, the petitioner must state the reason why they were not presented to the Administrator within the prescribed time. The Administrator does not consider repetitive petitions and unless the Administrator otherwise provides, the filing of a petition does not stay the effective date of the final rule. IX. Appendix A The following tables provide an itemization of the time expended, hourly rates, and direct and indirect costs associated with NHTSA's receipt, handling, processing, and disbursement of cash deposits submitted to the agency in lieu of sureties on DOT conformance bonds: Receipt, Processing, and Handling of Cash Deposits [Cash] Step of process Staff * Time mins. FY 07 rate FY 07 cost FY 08 rate FY 08 cost Cash received and delivered C 10 $50.50 $8.42 $51.77 $8.63 Agreement obligations discussed with importer E 10 89.88 14.98 92.64 15.44 Prepare formal agreement E 10 89.88 14.98 92.64 15.44 Agreement faxed for importer's signature ( 1 ) ( 1 ) Signed agreement received and delivered C 5 50.50 4.21 51.77 4.31 Prepare agreement approval memo E 20 89.88 29.96 92.64 30.88 Agreement review and signature E 10 98.52 16.42 101.61 16.94 E 10 98.52 16.42 101.61 16.94 E 10 98.52 16.42 101.61 16.94 Prepare CBP letter approving vehicle entry E 10 89.88 14.98 92.64 15.44 Fax CBP letter ( 1 ) ( 1 ) Prepare importer letter approving vehicle entry E 10 89.88 14.98 92.64 15.44 Transmit letter to importer by fax ( 1 ) ( 1 ) Create database record C 5 50.50 4.21 51.77 4.31 Prepare and deliver memo/cash to finance E 10 89.88 14.98 92.64 15.44 Deposit cash in bank E 15 89.88 22.47 92.64 23.16 Subtotal 193.43 199.31 * Staff Notes:
(C)is contractor and
(E)is employee. 1 Toll charge. Handling and Disbursement of Cash Deposits [Cash] Step of process Staff * Time mins. FY 07 rate FY 07 cost FY 08 rate FY 08 cost Importer notifies NHTSA that vehicle conformance obligations are met E 10 $89.88 $14.98 $92.64 $15.44 Prepare memo requesting check to importer E 10 89.88 14.98 92.64 15.44 Withdraw funds from bank by check E 15 89.88 22.47 92.64 23.16 Deliver check E 5 89.88 7.49 92.64 7.72 Notify NHTSA Finance Director E 5 89.88 7.49 92.64 7.72 Prepare letter with check enclosure E 10 89.88 14.98 92.64 15.44 Mail letter and check to importer ( 1 ) ( 1 ) Review monthly bank statements E 5 89.88 7.49 92.64 7.72 Subtotal 89.88 92.64 * Staff Notes:
(C)is contractor and
(E)is employee. 1 Postage. Other Direct Costs Direct costs Time mins. FY 07 rate FY 07 cost FY 08 rate FY 08 cost Computer and Computer Maintenance 85 $1.86/hr $158.10 $1.86/hr $158.10 Postage 3.00 3.00 3.00 3.00 Toll Calls
(3)1.92 5.75 1.92 5.75 Subtotal 166.85 166.85 Subtotals FY 07 cost FY 08 cost Subtotal $193.43 $199.31 Subtotal 89.88 92.64 Subtotal 166.85 166.85 Total 450.16 458.80 X. Rulemaking Analyses and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget
(OMB)review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. We have considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under Executive Order 12866. This rulemaking action is also not considered to be significant under the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). Based on the level of the fees and the volume of affected vehicles, NHTSA has concluded that the costs of the final rule will be so minimal as not to warrant preparation of a full regulatory evaluation. Because NHTSA's acceptance of the cash deposits is a necessary predicate to the release of the vehicle into the commerce of the United States, NHTSA has concluded that the expense incurred by the agency (the subject of this rulemaking) to receive, process, handle, and disburse cash deposits may be treated as part of the bond processing cost, for which NHTSA is authorized to set a fee under 49 U.S.C. 3014(a)(3)(A). This action does not involve any substantial public interest or controversy. It has no substantial effect upon State and local governments and imposes no substantial impact upon a major transportation safety program. A regulatory evaluation analyzing the economic impact of the final rule establishing the registered importer program, adopted on September 29, 1989, was prepared, and is available for review in the docket. B. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.,* as amended by the Small Business Regulatory Enforcement Fairness Act (SBFEFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking or a final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR Part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” See 13 CFR § 121.105(a). No regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. The agency has considered the effects of this rulemaking under the Regulatory Flexibility Act, and certifies that the amendment it adopts will not have a significant economic impact upon a substantial number of small entities. The following is NHTSA's statement providing the factual basis for the certification (5 U.S.C. 605(b)). The adopted amendment will primarily affect entities that currently modify nonconforming vehicles and which are small businesses within the meaning of the Regulatory Flexibility Act. Of the 67 such entities that are currently licensed with NHTSA, only a few have furnished the agency with cash deposits in lieu of sureties on DOT conformance bonds. Despite the fact that they qualify as small businesses, the agency has no reason to believe that these companies will be unable to pay the adopted fee. Moreover, consistent with prevailing industry practices, the fee should be passed through to the ultimate purchasers of any vehicle for which a cash deposit in lieu of sureties is given to the agency. The cost to owners or purchasers of these vehicles may be expected to increase to the extent necessary to reimburse the RI for the fee payable to the agency for the cost of processing a cash deposit. Governmental jurisdictions will not be affected at all since they are generally neither importers nor purchasers of nonconforming motor vehicles. C. Executive Order 13132 (Federalism) Executive Order 13132 on “Federalism” requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” Executive Order 13132 defines the term “policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, NHTSA may not issue a regulation that has federalism implication, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation. The amendment adopted in this final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in Executive Order 13132. That is because this final rule applies to importers of motor vehicles and registered importers, and not to State or local governments. Thus, the requirements of Section 6 of the Executive Order do not apply to this rulemaking action. D. National Environmental Policy Act NHTSA has analyzed this action for purposes of the National Environmental Policy Act. The action will not have a significant effect upon the environment because it is anticipated that the annual volume of motor vehicles imported through RIs would not vary significantly from that existing before promulgation of the rule. E. Executive Order 12988 (Civil Justice Reform) Pursuant to Executive Order 12988 “Civil Justice Reform,” the agency has considered whether the amendment adopted in this final rule will have any retroactive effect. NHTSA concludes that the amendment will not have any retroactive effect. Judicial review of this final rule may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review. F. Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA)requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with the base year of 1995). Before promulgating a rule for which a written assessment is needed, section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Because this final rule does not require the expenditure of resources beyond $100 million annually, this action is not subject to the requirements of sections 202 and 205 of the UMRA. G. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. The collection of information resulting from the RI program, including 49 CFR Part 594, has been approved by OMB and assigned OMB Control No. 2127-0002, “Importation of Vehicles and Equipment Subject to the Federal Motor Vehicle Safety, Bumper and Theft Prevention Standards.” The expiration date is 11/30/2010. The clearance covers 63,818 respondents, and is for 42,413 hours. Today's final rule only establishes a fee for a collection of information that has already been approved by OMB, and does not affect the scope of the approved collection. H. Executive Order 13045 Executive Order 13045 applies to any rule that
(1)is determined to be “economically significant” as defined under E.O. 12866, and
(2)concerns an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned rule is preferable to other potentially effective and reasonably feasible alternatives considered by us. This rulemaking is not economically significant and does not concern an environmental, health, or safety risk that will have a disproportionate effect on children. It therefore is not subject to the Executive Order. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs the agency to provide Congress, through the OMB, with explanations when we decide not to use available and applicable voluntary consensus standards. After conducting a search of available sources, we have concluded that there are no voluntary consensus standards applicable to this final rule. J. Privacy Act Anyone is able to search the electronic form of all submissions received into any of our dockets by the name of the individual submitting the comment or petition (or signing the comment or petition, 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). K. 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. You may use the RIN that appears in the heading on the first page of this document to find this action in the Unified Agenda. List of Subjects in 49 CFR Part 594 Administrative practice and procedure, Imports, Motor vehicle safety. In consideration of the foregoing, part 594, Schedule of Fees Authorized by 49 U.S.C. 30141, in Title 49 of the Code of Federal Regulations is amended as follows: PART 594—SCHEDULE OF FEES AUTHORIZED BY 49 U.S.C. 30141 1. The authority citation for part 594 continues to read as follows: Authority: 49 U.S.C. 30141, 31 U.S.C. 9701; delegation of authority at 49 CFR 1.50. 2. Section 594.9 is amended by: a. Revising the section heading; b. Adding paragraph (d); and c. Adding paragraph
(e)to read as follows: § 594.9 Fee for reimbursement of bond processing costs and costs for processing offers of cash deposits or obligations of the United States in lieu of sureties on bonds.
(d)Each importer must pay a fee based upon the direct and indirect costs the agency incurs for receipt, processing, handling, and disbursement of cash deposits or obligations of the United States in lieu of sureties on bonds that the importer submits as authorized by § 591.10 of this chapter in lieu of a conformance bond required under § 591.6(c) of this chapter.
(e)The fee for each vehicle imported on and after October 1, 2008, for which cash deposits or obligations of the United States are furnished in lieu of a conformance bond, is $459.00. Issued on: June 25, 2008. Nicole R. Nason, Administrator. [FR Doc. E8-14858 Filed 7-10-08; 8:45 am] BILLING CODE 4910-59-P 73 134 Friday, July 11, 2008 Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2008-0420; FRL-8690-6] Approval and Promulgation of Air Quality Implementation Plans; Texas; Dallas/Fort Worth 1-Hour Ozone Nonattainment Area; Determination of Attainment of the 1-Hour Ozone Standard AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing to determine that the Dallas/Fort Worth
(DFW)1-hour ozone nonattainment area is currently attaining the 1-hour ozone National Ambient Air Quality Standard (NAAQS). This determination is based upon certified ambient air monitoring data that show the area has monitored attainment of the 1-hour ozone NAAQS for the 2004-2006 monitoring period. In addition, quality controlled and quality assured ozone data for 2007 and 2008 that are available in the EPA Air Quality System database, but not yet certified, show this area continues to attain the 1-hour ozone NAAQS. If this proposed determination is made final, the requirements for this area to submit an attainment demonstration or 5% Increment of Progress
(IOP)plan, a reasonable further progress plan, contingency measures, and other planning State Implementation Plans
(SIPs)related to attainment of the 1-hour ozone NAAQS shall be suspended for so long as the area continues to attain the 1-hour ozone NAAQS. DATES: Comments must be received on or before *August 11, 2008* . ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-2008-0420, by one of the following methods: • *Federal Rulemaking Portal:* *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • U.S. EPA Region 6 Contact Us Web site: *http://epa.gov/region6/r6coment.htm* . Please click on 6PD (Multimedia) and select Air before submitting comments. • *E-mail:* Mr. Guy Donaldson at donaldson.guy *@epa.gov* . Please also send a copy by email to the person listed in the FOR FURTHER INFORMATION CONTACT section below. • *Fax:* Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-665-7263. • *Mail:* Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. • *Hand or Courier Delivery:* Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4 p.m. weekdays except for legal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R06-OAR-2008-0420. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information the disclosure of which is restricted by statute. Do not submit information through *http://www.regulations.gov* or e-mail that you consider to be CBI or otherwise protected from disclosure. The *http://www.regulations.gov* Web site is an anonymous access system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a fee of 15 cents per page for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. FOR FURTHER INFORMATION CONTACT: Ms. Carrie Paige, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone
(214)665-6521, fax
(214)665-7263, e-mail address *paige.carrie@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, “we,” “us,” and “our” means EPA. This supplementary information section is arranged as follows: I. What Is the Background for This Action? II. What Is the Impact of a United States Court of Appeals Decision in the *South Coast* Case Regarding EPA's Phase 1 Ozone Implementation Rule on This Proposed Rule? III. Proposed Determination of Attainment IV. What Action Is EPA Taking? V. Statutory and Executive Order Reviews I. What Is the Background for This Action? The Clean Air Act (the Act) requires us to establish National Ambient Air Quality Standards (NAAQS) for certain widespread pollutants that cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare (sections 108 and 109 of the Act). In 1979, we promulgated the 1-hour ozone standard of 0.12 parts per million
(ppm)(44 FR 8202, February 8, 1979). For ease of communication, many reports of ozone concentrations are given in parts per billion (ppb); ppb = ppm x 1000. Thus, 0.12 ppm becomes 120 ppb or 124 ppb when rounding is considered. An area exceeds the 1-hour ozone standard each time an ambient air quality monitor records a 1-hour average ozone concentration above 0.12 ppm in any given day. Only the highest 1-hour ozone concentration at the monitor during any 24 hour day is considered when determining the number of exceedance days at the monitor. An area violates the ozone standard if, over a consecutive 3-year period, more than 3 days of exceedances occur at the same monitor. For more information please see “National 1-hour primary and secondary air quality standards for ozone” (40 CFR 50.9) and “Interpretation of the 1-Hour Primary and Secondary National Ambient Air Quality Standards for Ozone” (40 CFR 50, Appendix H). The fourth-highest daily ozone concentration over the 3-year period is called the design value (DV). The DV indicates the severity of the ozone problem in an area; it is the ozone level around which a state designs its control strategy for attaining the ozone standard. A monitor's DV is the fourth highest ambient concentration recorded at that monitor over the previous 3 years. An area's DV is the highest of the design values from the area's monitors. The Act, as amended in 1990, required EPA to designate as nonattainment any area that was violating the 1-hour ozone standard, generally based on air quality monitoring data from the 1987 through 1989 period (section 107(d)(4) of the Act; 56 FR 56694, November 6, 1991). The Act further classified these areas, based on their ozone DVs, as marginal, moderate, serious, severe, or extreme. The control requirements and date by which attainment is to be achieved vary with an area's classification. Marginal areas are subject to the fewest mandated control requirements and had the earliest attainment date, November 15, 1993, while severe and extreme areas are subject to more stringent planning requirements and are provided more time to attain the standard. The DFW 1-hr ozone nonattainment area was initially classified as moderate (56 FR 56694, November 6, 1991) with an attainment date of November 15, 1996. Since the area did not attain the standard by November 15, 1996, we reclassified the area to serious on March 20, 1998 (63 FR 8128). The statutory attainment date for DFW, with its reclassification to serious, was November 15, 1999. The DFW 1-hour ozone nonattainment area contains Dallas, Tarrant, Collin, and Denton Counties (40 CFR parts 81.344). As a result of the reclassification to serious, the State was required to submit an attainment demonstration SIP with an attainment date of November 15, 1999 and a Rate of Progress
(ROP)SIP covering the years from November 15, 1996 to November 15, 1999. The State submitted those SIPs on March 19, 1999. The State had previously submitted the moderate area 15% ROP plan on August 8, 1996, before the area was reclassified to serious. The 15% plan was given a conditional, interim approval. Our review showed that the attainment demonstration SIP submitted in 1999 did not contain an adequate control strategy or adopted measures to implement the strategy and the 1999 Post-1996 ROP SIP did not achieve the required 9% reduction in emissions for the time period. Therefore, we found both SIPs incomplete and started sanctions and Federal Implementation Plan
(FIP)clocks effective May 13, 1999. A new Post-1996 ROP SIP was submitted October 25, 1999, and was found complete on December 16, 1999, since the new plan contained additional volatile organic compound
(VOC)reductions to meet the 9% requirement. The new attainment demonstration SIP was submitted April 25, 2000, and was found complete on June 23, 2000, because it contained a modeled control strategy and adopted regulations to implement the strategy. These two completeness findings stopped the sanctions clocks. The 2000 SIP also contained a transport determination. Under an EPA policy, “Extension of Attainment Dates for Downwind Transport Areas,” dated July 16, 1998, an area such as DFW could have been granted an attainment date extension if it could be shown that the DFW area was affected by emissions from an up-wind nonattainment area with a later attainment date (e.g., Houston 2007) to a degree that affects the downwind area's ability to achieve attainment. This policy was not upheld by the Courts. See, *Sierra Club* v. *EPA* , 294 F.3rd 155 ( *D.C.* Cir. 2002), *Sierra Club* v. *EPA* , 311 F.3rd 853 (7th Cir. 2002), and *Sierra Club* v. *EPA* , 314 F.3rd 735 (5th Cir. 2002). EPA proposed approval of the 2000 SIP and transport demonstration on January 18, 2001 (66 FR 4756). However, due to the Courts' ruling EPA could not take final action on this SIP. EPA published the 8-hour ozone designations and the first phase governing certain facets of implementation of the 8-hour ozone standard (Phase 1 Rule) on April 30, 2004 (69 FR 23858 and 69 FR 23951, respectively). The DFW area was designated as nonattainment for the 8-hour ozone standard and comprises nine counties: Collin, Dallas, Denton, and Tarrant counties (these four constitute the 1-hour ozone nonattainment area, hereafter referred to as the four core counties), and Ellis, Johnson, Kaufman, Parker and Rockwall counties. At the time of designation however, the four core counties remained in nonattainment for the 1-hour standard and had two outstanding 1-hour ozone obligations:
(1)The area did not have an approved 1-hour ozone attainment demonstration; and
(2)the area did not have approved reasonably available control technology
(RACT)requirements for major sources of VOC emissions (VOC RACT). The Phase 1 Rule revoked the 1-hour ozone standard (see 69 FR 23951). The Phase 1 Rule further provided the following three options for areas that had not met the 1-hour ozone attainment demonstration requirement:
(1)Submit a 1-hour attainment demonstration no later than 1 year after designation;
(2)Submit a Reasonable Further Progress
(RFP)plan for the 8-hour NAAQS, no later than 1 year following designations for the 8-hour NAAQS, providing a 5% increment of emissions reduction from the area's 2002 emissions inventory (EI); or
(3)Submit an early 8-hour ozone attainment demonstration SIP that ensures that the first segment of RFP is achieved early (See 40 CFR 51.905(a)(ii)). Texas selected option 2, to submit the RFP plan providing a 5% increment of emissions reduction from the area's 2002 EI. This increment of emissions reduction is called the 5% Increment of Progress
(IOP)plan. Texas submitted the 5% IOP plan for DFW, but EPA has not taken final action on the plan. The Phase 1 Rule also provided that 1-hour ozone nonattainment areas are required to adopt and implement “applicable requirements” according to the area's classification under the 1-hour ozone standard for anti-backsliding purposes (see 40 CFR § 51.905(a)(i)). On May 26, 2005, we determined that an area's 1-hour designation and classification as of June 15, 2004 would dictate what 1-hour obligations remain as “applicable requirements” under the Phase 1 Rule (70 FR 30592). The DFW 1-hour nonattainment area was still classified as serious on June 15, 2004, so the 1-hour ozone standard requirements applicable to the four core counties are those that apply to nonattainment areas classified as serious. An outstanding “applicable requirement” for the four core counties is the VOC RACT. We proposed to approve RACT for all major sources of VOCs in the 1-hour DFW nonattainment area on January 18, 2001 (66 FR 4756) and received no comments. In a separate rulemaking, we are re-proposing to approve RACT for all major sources of VOCs in the 1-hour DFW nonattainment area. Apart from the attainment demonstration and RACT, the DFW area has satisfied all other serious area applicable requirements under the 1-hour ozone standard. See the area's Clean Fuels Fleet Program (February 7, 2001 at 66 FR 9203); the area's post 1996 Rate of Progress
(ROP)plan and associated motor vehicle emission budgets (MVEBs) (March 28, 2005 at 70 FR 15592); and the area's 15% ROP plan and associated MVEBs (April 12, 2005 at 70 FR 18993). For a complete list, see the Texas SIP map at *http://www.epa.gov/earth1r6/6pd/air/sip/sip.htm* . II. What Is the Impact of a United States Court of Appeals Decision in the South Coast Case Regarding EPA's Phase 1 Ozone Implementation Rule on This Proposed Rule? On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated the Phase 1 Rule. *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d 882 (D.C. Cir. 2006). On June 8, 2007, in *South Coast Air Quality Management Dist.* v. *EPA* , Docket No. 04-1201, in response to several petitions for rehearing, the D.C. Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. With respect to the challenges to the anti-backsliding provisions of the rule, the Court vacated three provisions that would have allowed States to remove from the SIP or not to adopt three 1-hour obligations once the 1-hour standard was revoked to transition to the implementation of the 8-hour ozone standard:
(1)Nonattainment area new source review
(NSR)requirements based on an area's 1-hour nonattainment classification;
(2)section 185 penalty fees for 1-hour severe or extreme nonattainment areas that fail to attain the 1-hour standard by the 1-hour attainment date; and
(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS or for failure to attain that NAAQS. The Court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. The provisions in 40 CFR 51.905(a)-(c) concerning anti-backsliding remain in effect and areas must continue to meet those requirements. However, the three provisions noted above, which are specified in 40 CFR 51.905(e), were vacated by the Court. As a result, States must continue to meet the obligations for 1-hour NSR; 1-hour contingency measures; and, for severe and extreme areas, the obligations related to a section 185 fee program. Currently, EPA is developing several proposed rules to address the Court's vacatur and remand with respect to these three requirements. We address below how the obligations for DFW will be met, specifically, the 1-hour obligations under EPA's anti-backsliding rule (as interpreted by the Court), and the obligation under 40 CFR 51.905(a)(ii)(B) that applies to DFW because DFW did not have a fully approved attainment SIP for the 1-hour NAAQS at the time of its designation under the 8-hour NAAQS, will be met. III. Proposed Determination of Attainment EPA is proposing to find that the DFW 1-hour ozone nonattainment area is currently in attainment of the 1-hour standard based on the most recent 3 years of quality-assured air quality data. Certified ambient air monitoring data show that the area has monitored attainment of the 1-hour ozone NAAQS for the 2004-2006 monitoring period. Quality controlled and quality assured ozone data for 2007 and 2008 that are available in the EPA Air Quality System database (AQS), but not yet certified, show this area continues to attain the 1-hour ozone NAAQS. In addition, as of June 30, 2008, data available in AQS and on the Texas Commission on Environmental Quality Web site at *http://www.tceq.state.tx.us/cgi-bin/compliance/monops/ozone_exceedance.pl* show no exceedances of the 1-hour standard for the DFW area in 2008. Consistent with 40 CFR 50, Appendix H, Table 1 contains the 1-hour ozone data for the DFW 1-hour ozone nonattainment area monitors that show that the area is currently attaining the 1-hour ozone NAAQS. Table 1.—1-Hour Ozone Data for the DFW 1-Hour Ozone Nonattainment Area Site Design value
(ppb)2004-2006 2005-2007 Actual and estimated number of exceedances a 2004 2005 2006 2007 3-year exceedance average 2004-2006 2005-2007 Denton County Airport (48-121-0034) 118 118 0 0 0 1 0 0.33 Nuestra (48-113-0075) 117 16 0 0 0 0 0 0 Hinton (48-113-0069) 114 114 0 0 0 0 0 0 Executive (48-113-0087) 111 110 1 0 0 0 0.33 0 Keller (48-439-2003) 115 117 0 2 0 1 0.67 1.00 Meacham (48-439-1002) 117 118 0 2 0 1 0.67 1.00 Arlington (48-439-3011) 113 113 0 0 0 0 0 0 Eagle Mt. Lake (48-439-0075) 124 124 1 2 0 1 1.00 1.00 Grapevine (48-439-3009) 112 111 1 0 0 0 0.33 0 Frisco (48-085-0005) 113 111 0 0 0 0 0 0 a The actual and estimated number of exceedances were equal in all cases. Pursuant to the interpretation set forth in the May 10, 1995 memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone Ambient Air Quality Standard” (Clean Data Policy), EPA is proposing to make a finding of attainment based on current air quality. Under this policy, if EPA determines through rulemaking that the DFW 1-hour ozone nonattainment area is meeting the 1-hour ozone standard, the requirements for the State to submit and have approved an attainment demonstration and related components such as reasonably available control measures (RACM), an RFP demonstration (including the 5% IOP plan), and contingency measures for failure to attain or make RFP are suspended as long as the area continues to attain the 1-hour ozone NAAQS. If the area subsequently violates the ozone NAAQS, EPA would initiate notice-and-comment rulemaking to withdraw the determination of attainment, which would result in reinstatement of the requirement for the State to submit such plans. The Tenth, Seventh and Ninth Circuits have upheld EPA rulemakings applying the Clean Data Policy. See *Sierra Club* v. *EPA,* 99 F. 3d 1551 (10th Cir. 1996); *Sierra Club* v. EPA, 375 F.3d 537 (7th Cir. 2004) and *Our Children's Earth Foundation* v. *EPA,* No. 04-73032 (9th Cir. June 28, 2005) memorandum opinion. 1 See also the discussion and rulemakings cited in the Phase 2 Rule, 70 FR 71644-71646 (November 29, 2005). 1 The Clean Data Policy, as it is embodied in 40 CFR 51.918, is being challenged in the context of the 8-hour ozone standard in the Phase 2 Rule ozone litigation pending in the D.C. Circuit, *NRDC* v. *EPA* , No. 06-1045 (D.C. Cir.). IV. What Action Is EPA Taking? EPA proposes to find that the DFW 1-hour ozone nonattainment area has attained the 1-hour ozone standard. Thus the requirements for submitting the attainment demonstration, RFP requirements, or in this case a 5% IOP, (40 CFR 51.905(a)), and section 172(c)(9) and section 182(c)(9) contingency measures are suspended for so long as the area is attaining the standard. Thus pursuant to our proposed determination of attainment and in accordance with our Clean Data Policy, the effect of the finding is that the following requirements to submit SIP measures under the 1-hour anti-backsliding provisions (40 CFR Section 51.905) are suspended for so long as the area continues to attain the 1-hour standard: RFP reductions under section 182(c)(2)(B) (for serious and above areas) Attainment demonstration under section 182(c)(2) (for serious and above areas) Contingency measures under section 172(c)(9) and section 182(c)(9) (for serious and above areas). V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action proposes to make a determination based on air quality data, and would, if finalized, result in the suspension of certain Federal 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 proposes to make a determination based on air quality data, and would, if finalized, result in the suspension of certain Federal requirements, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have 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 proposed 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), because it merely proposes to make a determination based on air quality data and would, if finalized, result in the suspension of certain Federal requirements, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed 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 proposes to determine that air quality in the affected area is meeting Federal standards. 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 because it would be inconsistent with applicable law for EPA, when determining the attainment status of an area, to use voluntary consensus standards in place of promulgated air quality standards and monitoring procedures that otherwise satisfy the provisions of the Clean Air Act. This proposed 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.* ). Under Executive Order 12898, EPA finds that this rule involves a proposed determination of attainment based on air quality data and will not have disproportionately high and adverse human health or environmental effects on any communities in the area, including minority and low-income communities. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: July 1, 2008. Richard E. Greene, Regional Administrator, Region 6. [FR Doc. E8-15809 Filed 7-10-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2007-0523; FRL-8690-5] Approval and Promulgation of Implementation Plans; Texas; Control of Emissions of Nitrogen Oxides (NO X ) From Stationary Sources AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing approval of rules for the control of NO <sup>X</sup> emissions into the Texas State Implementation Plan (SIP). The Texas Commission on Environmental Quality
(TCEQ)submitted this revision to the SIP to us on May 30, 2007 (May 30, 2007 SIP revision). The May 30, 2007 SIP revision is a substantive and non-substantive recodification and reformatting of the NO <sup>X</sup> rules currently approved in the Texas SIP. This revision also includes a part of the NO <sup>X</sup> reductions needed for the Dallas/Forth Worth (D/FW) area to attain the Federal 8-hour ozone National Ambient Air Quality Standard (NAAQS). This rulemaking covers four separate actions. First, we are proposing to approve the repeal of the current Chapter 117 rules that correspond to the non-substantive new rules and the revised and reformatted rules because the reformatted revision will better accommodate future additions/revisions to the rules. See section 1 of this document. Second, we are proposing to approve revisions to the Texas SIP that add new controls for the D/FW major NO <sup>X</sup> point sources. We are not, however, taking action on the Texas rules for cement plants in this document. The rules for cement plants are being evaluated in a separate **Federal Register** document. See sections 5, 6, 13, and 14 of this document. Third, we are proposing to approve revisions to the Texas SIP that add new controls for D/FW minor NO <sup>X</sup> sources. See section 15 of this document. Fourth, we are proposing to approve revisions to the Texas SIP that add new controls for combustion sources in East Texas. See section 16 of this document. These NO <sup>X</sup> reductions will assist the D/FW area to attain the 8-hour ozone NAAQS. We are proposing approval of these actions as meeting the requirements of section 110 and part D of the Federal Clean Air Act (the Act). DATES: Comments must be received on or before August 11, 2008. ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-2007-0523, by one of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • *U.S. EPA Region 6 “Contact Us” Web site: http://epa.gov/region6/r6coment.htm.* Please click on “6PD” (Multimedia) and select “Air” before submitting comments. • *E-mail:* Mr. Guy Donaldson at *donaldson.guy@epa.gov.* Please also send a copy by e-mail to the person listed in the FOR FURTHER INFORMATION CONTACT section below. • *Fax:* Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-665-7263. • *Mail:* Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. • *Hand or Courier Delivery:* Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4 p.m. weekdays except for legal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R06-OAR-2007-0523. The EPA's policy is that all comments received 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 information claimed to be Confidential Business Information
(CBI)or other information the disclosure of which is restricted by statute. Do not submit information through *www.regulations.gov* or e-mail that you consider to be CBI or otherwise protected from disclosure. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment: Texas Commission on Environmental Quality, Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753. FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone
(214)665-6691, fax
(214)665-7263, e-mail address *shar.alan @epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document “we,” “us,” and “our” refer to EPA. I. General Information What Should I Consider as I Prepare My Comments for EPA? A. *Submitting CBI.* Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations
(CFR)part 2. B. *Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number. • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. II. Background Table of Contents 1. What are we proposing to approve? 2. What is the relationship between the May 30, 2007 SIP revision and the ozone attainment demonstration plan for the D/FW? 3. What sections of the May 30, 2007, SIP revision will become part of Texas SIP? 4. What sections of the May 30, 2007, SIP revision will not become part of Texas SIP? 5. What sections of the May 30, 2007, SIP revision are we not acting upon in this proposal? 6. What Counties in the D/FW area will the May 30, 2007, SIP revision affect? 7. What Counties in East and Central Texas will the May 30, 2007, SIP revision affect? 8. What is Ozone and why do we regulate it? 9. What are NO <sup>X</sup> ? 10. What is a SIP? 11. What areas in Texas will today's rulemaking action affect? 12. What is the section 110(l) “anti-backsliding” analysis for the May 30, 2007 SIP revision? 13. What are the NO <sup>X</sup> emissions requirements for point sources in the D/FW area that we are proposing to approve? 14. What are the NO <sup>X</sup> emission requirements for stationary diesel engines in the D/FW area that we are proposing to approve? 15. What are the NO <sup>X</sup> emissions specifications for minor sources of NO <sup>X</sup> in the D/FW area that we are proposing to approve? 16. What are the NO <sup>X</sup> emissions requirements for stationary reciprocating internal combustion engines
(RICE)in East Texas that we are proposing to approve? 17. What are the compliance schedules for NO <sup>X</sup> emissions sources that we are proposing to approve? 1. What are we proposing to approve? On May 30, 2007, TCEQ submitted rule revisions to 30 TAC, Chapter 117, “Control of Air Pollution from Nitrogen Compounds,” as a revision to the Texas SIP for point sources of NO <sup>X</sup> (May 30, 2007 SIP revision). The State of Texas submitted the May 30, 2007 SIP revision to us, to, among other things, provide a portion of the NO <sup>X</sup> reductions needed for the D/FW area to attain the Federal 8-hour ozone NAAQS. We are taking four separate actions in this rulemaking action. First, these revisions involve repealing the current Chapter 117 rules, and simultaneously proposing to approve into the Texas SIP, a new reformatted Chapter 117. We are proposing to approve the repeal of the current Chapter 117, and the recodification and reformatting of Chapter 117 because the reformatted revision will better accommodate future additions/revisions to the rules and will maintain consistency between the State rules and Federal SIP. We are proposing to approve all of the non-substantive reformatted, restructured, renumbered, reorganized, and administrative revisions to the wording of Chapter 117 into Texas SIP. We want to clarify that the specifically identified rules do not make any changes to the substance of the rules that we previously approved into the Texas SIP, Chapter 117. By approving the repeal of the current Texas SIP, Chapter 117's rules we are making it clear that the new rules replace the previous rules in their entirety. We are proposing to approve these non-substantive reformatted, restructured, renumbered, reorganized, and administrative revisions to the wording of Chapter 117 under section 110 and part D of the Act. For a full list of affected sections see section 3 of this document. Second, we are proposing to approve revisions to the D/FW NO <sup>X</sup> major point source rules. See sections 5, 6, 13, and 14 of this document. Sections 117.410(a), 117.410(b) and 117.310(b) contain substantive changes in the reformatted Chapter 117 rules that result in additional NO <sup>X</sup> reductions. These reductions were not previously a part of EPA-approved Texas SIP, Chapter 117. Third, we are proposing to approve revisions to the D/FW minor source rules for the control of NO <sup>X</sup> . See section 15 of this document. Sections 117.2010(a) and 117.2110(a) contain substantive changes in the reformatted Chapter 117 rules that result in additional NO <sup>X</sup> reductions which will help the DFW area to attain the 1997 8-hour ozone standard. These reductions were not previously a part of EPA-approved Texas SIP, Chapter 117. Fourth, we are proposing to approve revisions to the rules for the control of NO <sup>X</sup> emissions from combustion sources in East Texas. See section 16 of this document. Sections 117.3310(a) and 117.3010(a) contain substantive changes in the reformatted Chapter 117 rules that result in 22.4 Tons Per Day
(TPD)of cumulative NO <sup>X</sup> reductions. These reductions were not previously a part of EPA-approved Texas SIP, Chapter 117. Tables 1 and 2 list the section of the Texas rules with significant modifications and minor substantive modifications, respectively. Since Texas has reformatted and recodified the rule, the remaining sections of Chapter 117 are affected by this revision in nonsubstantive ways. Table 3 lists all of the sections that are impacted by this revision both in substantive and in nonsubstantive ways. Table 1 contains a list of the sections of Chapter 117 with significant modifications. Also see Figure 1 of 30 TAC Chapter 117 at 31 Texas Register 10899, published December 29, 2006. Table 1.—Description and Sections of 30 TAC, Chapter 117 Proposed for Modification Description Section Subchapter A: Definitions 117.10(2), 117.10(14), 117.10(24), 117.10(29), 117.10(44), and 117.10(51). Subchapter B, Division 4, Dallas-Fort Worth Eight Hour Ozone Nonattainment Area Major Sources 117.400-117.456. Removal from Subchapter B, Division 2 after compliance date for Division 4 117.200(b). Subchapter C, Division 4, Dallas-Fort Worth Eight Hour Ozone Nonattainment Area Utility Electric Generation Sources 117.1300-117.1356. Removal from Subchapter C, Division 2 after compliance date for Division 4 117.1100(c) Subchapter D, Division 2, Dallas-Fort Worth Eight Hour Ozone Nonattainment Area Minor Sources 117.2100-117.2145. Subchapter E: Multi-Region Combustion Control, Division 4, East Texas Combustion 117.3300-117.3345. Subchapter H: Administrative Provisions, Division 1, Compliance Schedules 117.9030, 117.9130, 117.9210, 117.9320, and 117.9340. The following Table 2 contains a list of changes to existing Chapter 117 language that are minor in nature. Also see Figure 1 of 30 TAC Chapter 117 at 31 Texas Register 10900, published December 29, 2006. Table 2.—Description and Sections of 30 TAC, Chapter 117 With Minor Changes Description Section Add equation for oxygen correction of pollutant concentration 117.10(35). Update utility boiler definition and utility electric generation rules applicability consistent with East and Central Texas utility rules 117.10(52), 117.1000, 117.1100, and 117.1200. Update emergency fuel oil exemption to include only appropriate reliability councils 117.1003(c), 117.1103(c), and 117.1203(c). Include list of ammonia methods in test methods procedures 117.8000(c). Allow major sources to petition ED for shorter test times 117.8000(b) Change references of “upsets” to “emissions events.” 117.123(k), 117.223(k), 117.323(k), 117.1020(k), 117.1120(k), and 117.1220(k). Clarify system cap equations to allow for adjustment period after startup 117.320(c). Additional data substitution option for major sources subject to MECT 117.340(c). Expand engine low use requirement from quarterly testing to BPA and D/FW 117.8140(b). Update references to 101.222 to be consistent with current 101.222, 117.145(a), 117.245(a), 117.345(a), 117.1045(a), 117.1145(a), 117.1245(a), and 117.3045(a). Clarify compliance schedule for industrial EGFs to submit level of activity information 117.9020(2)(B). For more details on each of these actions, you can refer to our Technical Support Document
(TSD)developed in conjunction with this rulemaking action. We are proposing to approve revisions to 30 TAC, Chapter 117, described above as actions one through four, because these revisions to 30 TAC Chapter 117 will enhance the Texas SIP for controlling NO <sup>X</sup> emissions from stationary sources and the NO <sup>X</sup> emission reductions will assist the D/FW area to attain the 1997 8-hour ozone NAAQS. Furthermore, approving the non-substantive changes will maintain consistency between the State rules and Federal SIP. 2. What is the relationship between the May 30, 2007 SIP revision and the ozone attainment demonstration plan for the D/FW? The resulting emissions reductions of NO <sup>X</sup> , an ozone precursor, from this SIP revision will assist in bringing the D/FW area into attainment with the 8-hour ozone NAAQS, and help with the maintenance of the ozone NAAQS in the East and Central parts of the State. We will be reviewing the 8-hour ozone attainment demonstration plan in a separate rulemaking action. 3. What sections of the May 30, 2007, SIP revision will become part of Texas SIP? Table 3 below contains a summary list of the sections of 30 TAC, Chapter 117 that Texas submitted on May 30, 2007, for point sources of NO <sup>X</sup> that we are proposing become part of the Texas SIP. Table 3 includes both the sections with substantive changes and the nonsubstantive changes. Table 3.—Section Numbers and Section Descriptions of 30 TAC, Chapter 117 Affected by the May 30, 2007, Proposed Rule Revision Section No. Description Section 117.10 Definitions. Section 117.100 Applicability. Section 117.103 Exemptions. Section 117.105 Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.110 Emission Specifications for Attainment Demonstration. Section 117.115 Alternative Plant-Wide Emission Specifications. Section 117.123 Source Cap. Section 117.130 Operating Requirements. Section 117.135 Initial Demonstration of Compliance. Section 117.140 Continuous Demonstration of Compliance. Section 117.145 Notification, Recordkeeping, and Reporting Requirements. Section 117.150 Initial Control Plan Procedures. Section 117.152 Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.154 Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.156 Revision of Final Control Plan. Section 117.200 Applicability. Section 117.203 Exemptions. Section 117.205 Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.210 Emission Specifications for Attainment Demonstration. Section 117.215 Alternative Plant-Wide Emission Specifications. Section 117.223 Source Cap. Section 117.230 Operating Requirements. Section 117.235 Initial Demonstration of Compliance. Section 117.240 Continuous Demonstration of Compliance. Section 117.245 Notification, Recordkeeping, and Reporting Requirements. Section 117.252 Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.254 Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.256 Revision of Final Control Plan. Section 117.300 Applicability. Section 117.303 Exemptions. Section 117.305 Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.310 Emission Specifications for Attainment Demonstration. Section 117.315 Alternative Plant-Wide Emission Specifications. Section 117.320 System Cap. Section 117.323 Source Cap. Section 117.330 Operating Requirements. Section 117.335 Initial Demonstration of Compliance. Section 117.340 Continuous Demonstration of Compliance. Section 117.345 Notification, Recordkeeping, and Reporting Requirements. Section 117.350 Initial Control Plan Procedures. Section 117.352 Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.354 Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.356 Revision of Final Control Plan. Section 117.400 Applicability. Section 117.403 Exemptions. Section 117.410 Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.423 Source Cap. Section 117.430 Operating Requirements. Section 117.435 Initial Demonstration of Compliance. Section 117.440 Continuous Demonstration of Compliance. Section 117.445 Notification, Recordkeeping, and Reporting Requirements. Section 117.450 Initial Control Plan Procedures. Section 117.454 Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.456 Revision of Final Control Plan. Section 117.1000 Applicability. Section 117.1003 Exemptions. Section 117.1005 Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.1010 Emission Specifications for Attainment Demonstration. Section 117.1015 Alternative System-Wide Emission Specifications. Section 117.1020 System Cap. Section 117.1035 Initial Demonstration of Compliance. Section 117.1040 Continuous Demonstration of Compliance. Section 117.1045 Notification, Recordkeeping, and Reporting Requirements. Section 117.1052 Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.1054 Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1056 Revision of Final Control Plan. Section 117.1100 Applicability. Section 117.1103 Exemptions. Section 117.1105 Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.1110 Emission Specifications for Attainment Demonstration. Section 117.1115 Alternative System-Wide Emission Specifications. Section 117.1120 System Cap. Section 117.1135 Initial Demonstration of Compliance. Section 117.1140 Continuous Demonstration of Compliance. Section 117.1145 Notification, Recordkeeping, and Reporting Requirements. Section 117.1152 Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.1154 Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1156 Revision of Final Control Plan. Section 117.1200 Applicability. Section 117.1203 Exemptions. Section 117.1205 Emission Specifications for Reasonably Available Control Technology (RACT). Section 117.1210 Emission Specifications for Attainment Demonstration. Section 117.1215 Alternative System-Wide Emission Specifications. Section 117.1220 System Cap. Section 117.1235 Initial Demonstration of Compliance. Section 117.1240 Continuous Demonstration of Compliance. Section 117.1245 Notification, Recordkeeping, and Reporting Requirements. Section 117.1252 Final Control Plan Procedures for Reasonably Available Control Technology. Section 117.1254 Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1256 Revision of Final Control Plan. Section 117.1300 Applicability. Section 117.1303 Exemptions. Section 117.1310 Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.1335 Initial Demonstration of Compliance. Section 117.1340 Continuous Demonstration of Compliance. Section 117.1345 Notification, Recordkeeping, and Reporting Requirements. Section 117.1350 Initial Control Plan Procedures. Section 117.1354 Final Control Plan Procedures for Attainment Demonstration Emission Specifications. Section 117.1356 Revision of Final Control Plan. Section 117.2000 Applicability. Section 117.2003 Exemptions. Section 117.2010 Emission Specifications. Section 117.2030 Operating Requirements. Section 117.2035 Monitoring and Testing Requirements. Section 117.2045 Recordkeeping and Reporting Requirements. Section 117.2100 Applicability. Section 117.2103 Exemptions. Section 117.2110 Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.2130 Operating Requirements. Section 117.2135 Monitoring, Notification, and Testing Requirements. Section 117.2145 Recordkeeping and Reporting Requirements. Section 117.3000 Applicability. Section 117.3003 Exemptions. Section 117.3005 Gas-Fired Steam Generation. Section 117.3010 Emission Specifications. Section 117.3020 System Cap. Section 117.3035 Initial Demonstration of Compliance. Section 117.3040 Continuous Demonstration of Compliance. Section 117.3045 Notification, Recordkeeping, and Reporting Requirements. Section 117.3054 Final Control Plan Procedures. Section 117.3056 Revision of Final Control Plan. Section 117.3200 Applicability. Section 117.3201 Definitions. Section 117.3203 Exemptions. Section 117.3205 Emission Specifications. Section 117.3210 Certification Requirements. Section 117.3215 Notification and Labeling Requirements. Section 117.3300 Applicability. Section 117.3303 Exemptions. Section 117.3310 Emission Specifications for Eight-Hour Attainment Demonstration. Section 117.3330 Operating Requirements. Section 117.3335 Monitoring, Notification, and Testing Requirements. Section 117.3345 Recordkeeping and Reporting Requirements. Section 117.4000 Applicability. Section 117.4005 Emission Specifications. Section 117.4025 Alternative Case Specific Specifications. Section 117.4035 Initial Demonstration of Compliance. Section 117.4040 Continuous Demonstration of Compliance. Section 117.4045 Notification, Recordkeeping, and Reporting Requirements. Section 117.4050 Control Plan Procedures. Section 117.4100 Applicability. Section 117.4105 Emission Specifications. Section 117.4125 Alternative Case Specific Specifications. Section 117.4135 Initial Demonstration of Compliance. Section 117.4140 Continuous Demonstration of Compliance. Section 117.4145 Notification, Recordkeeping, and Reporting Requirements. Section 117.4150 Control Plan Procedures. Section 117.4200 Applicability. Section 117.4205 Emission Specifications. Section 117.4210 Applicability of Federal New Source Performance Standards. Section 117.8000 Stack Testing Requirements. Section 117.8010 Compliance Stack Test Reports. Section 117.8100 Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources. Section 117.8110 Emission Monitoring System Requirements for Utility Electric Generation Sources. Section 117.8120 Carbon Monoxide
(CO)Monitoring. Section 117.8130 Ammonia Monitoring. Section 117.8140 Emission Monitoring for Engines. Section 117.9000 Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources. Section 117.9010 Compliance Schedule for Dallas-Fort Worth Ozone Nonattainment Area Major Sources. Section 117.9020 Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources. Section 117.9030 Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources. Section 117.9100 Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources. Section 117.9110 Compliance Schedule for Dallas-Fort Worth Ozone Nonattainment Area Utility Electric Generation Sources. Section 117.9120 Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources. Section 117.9130 Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources. Section 117.9200 Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources. Section 117.9210 Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources. Section 117.9300 Compliance Schedule for Utility Electric Generation in East and Central Texas. Section 117.9340 Compliance Schedule for East Texas Combustion. Section 117.9500 Compliance Schedule for Nitric Acid and Adipic Acid Manufacturing Sources. Section 117.9800 Use of Emission Credits for Compliance. Section 117.9810 Use of Emission Reductions Generated from the Texas Emissions Reduction Plan (TERP). You can find the entire TCEQ Chapter 117 rules at: *http://www.tceq.state.tx.us/rules/indxpdf.html#117.* For a detailed discussion of each of the above changes and why EPA believes they should be approved see the Technical Support Document for this action. 4. What sections of the May 30, 2007, SIP revision will not become part of the Texas SIP? Per TCEQ's request the following sections, listed in Table 4 below, of the May 30, 2007, SIP revision will not become a part of the EPA-approved Texas SIP. These rules mainly pertain to the control of ammonia or carbon monoxide emissions which are not ozone precursors and therefore, these rules are not necessary components of the Texas SIP. The rules listed in Table 4 are not already in the current Texas SIP and EPA continues to agree with Texas that these rules can remain outside the SIP. Table 4.—Sections of Chapter 117 Not in EPA-Approved Texas SIP Section No. Explanation 117.110(c), 117.125, 117.210(c), 117.225, 117.310(c), 117.325, 117.410(d), 117.425, 117.1010(b), 117.1025, 117.1110(b), 117.1125, 117.1210(b), 117.1225, 117.1310(b), 117.1325, 117.2010(i), 117.2025, 117.2110(h), 117.2125, 117.3010(e), 117.3025, 117.3123(f), 117.3125, 117.3310(e), and 117.3325 Not a part of EPA-approved Texas SIP and TCEQ continues to ask that these rules remain outside the SIP. Although the above sections of 30 TAC Chapter 117 are not to become a part of the Texas SIP they will continue to remain enforceable at the State level. 5. What sections of the May 30, 2007 SIP revision are we not acting upon in this proposal? We are not evaluating the cement kiln related sections of the May 30, 2007 SIP revision, in this document. See Table 5 below. We will review and act upon the cement kiln related sections of the May 30, 2007 SIP revision in a separate rulemaking action. Table 5.—Sections of Chapter 117 Not Being Evaluated in This Rulemaking Section No. Explanation 117.3100, 117.3101, 117.3103, 117.3110, 117.3120, 117.3123, 117.3125, 117.3140, 117.3142, and 117.3145 Cement kiln related, not evaluating in this rulemaking action. 6. What Counties in the D/FW area will the May 30, 2007 SIP revision affect? Table 6 below lists the Counties in the D/FW 8-hour ozone nonattainment area that will be affected by the May 30, 2007 SIP revision. Table 6.—Texas counties in the D/FW 8-Hour Ozone Nonattainment Area D/FW Counties Explanation Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant See section 117.10(2)(C). 7. What Counties in East and Central Texas will the May 30, 2007 SIP revision affect? Table 7 below lists the Counties in the East and Central Texas that will be affected by the May 30, 2007 SIP revision. Table 7.—Counties Part of the East and Central Texas Provision of Chapter 117 East and Central Texas counties Explanation Anderson, Brazos, Burleson, Camp, Cass, Cherokee, Franklin, Freestone, Gregg, Grimes, Harrison, Henderson, Hill, Hopkins, Hunt, Lee, Leon, Limestone, Madison, Marion, Morris, Nacogdoches, Navarro, Panola, Rains, Robertson, Rusk, Shelby, Smith, Titus, Upshur, Van Zandt, and Wood See section 117.10(14)(B). 8. What is ozone and why do we regulate it? Ozone is a gas composed of three oxygen atoms. Ground level ozone is generally not emitted directly from a vehicle's exhaust or an industrial smokestack, but is created by a chemical reaction between NO <sup>X</sup> and VOCs in the presence of sunlight and high ambient temperatures. Thus, ozone is known primarily as a summertime air pollutant. NO <sup>X</sup> and VOCs are precursors of ozone. Motor vehicle exhaust and industrial emissions, gasoline vapors, chemical solvents and natural sources emit NO <sup>X</sup> and VOCs. Urban areas tend to have high concentrations of ground-level ozone, but areas without significant industrial activity and with relatively low vehicular traffic are also subject to increased ozone levels because wind carries ozone and its precursors hundreds of miles from their sources. Repeated exposure to ozone pollution may cause lung damage. Even at very low concentrations, ground-level ozone triggers a variety of health problems including aggravated asthma, reduced lung capacity, and increased susceptibility to respiratory illnesses like pneumonia and bronchitis. It can also have detrimental effects on plants and ecosystems. 9. What are NO X ? Nitrogen oxides belong to the group of criteria air pollutants. NO <sup>X</sup> are produced from burning fuels, including gasoline and coal. Nitrogen oxides react with volatile organic compounds
(VOC)to form ozone or smog, and are also major components of acid rain. Also see *http://www.epa.gov/air/urbanair/nox/.* 10. What is a SIP? The SIP is a set of air pollution regulations, control strategies, other means or techniques and technical analyses developed by the state, to ensure that the state meets the NAAQS. The SIP is required by Section 110 and other provisions of the Act. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emissions inventories, monitoring networks, and modeling demonstrations. Each state must submit these regulations and control strategies to EPA for approval and incorporation into the Federally-enforceable SIP. Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. 11. What areas in Texas will today's rulemaking action affect? The substantive rule revisions we are proposing to approve today mainly affect the D/FW 8-hour ozone nonattainment area. See section 6 of this document. The substantive rule revisions we are proposing to approve today also affect 33 counties in East and Central Texas. See section 7 of this document. If you are in one of these affected areas, you should refer to the Texas NO <sup>X</sup> rules to determine if and how today's action will affect you. As stated elsewhere in this document the D/FW 8-hour ozone nonattainment area (Collin, Dallas, Denton, Tarrant, Ellis, Johnson, Kaufman, Parker, and Rockwall Counties) is designated nonattainment, and classified as a moderate 8-hour non-attainment area for ozone. See 69 FR 23857 published April 30, 2004. 12. What is the section 110(l) “anti-backsliding” analysis for the May 30, 2007 SIP revision? According to section 110(l) of the Act “each revision to an implementation plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act.” • The May 2007 SIP submittal includes documentation that the State has met and complied with the reasonable notice and public hearing requirements. The State held public hearings after proper notice and according to the 40 CFR 51.102 requirements. Proper notice included prominent advertisement in the areas affected at least 30 days prior to the dates of the hearings. The hearing notices of intended action were circulated to the public, including interested persons, EPA Region 6, and all applicable local air pollution control agencies. Public hearings were held in Houston, Dallas, Arlington, Midlothian, Longview, and Austin, Texas. The May 2007 SIP submittal contains information to the effect that State has met and complied with the reasonable notice and public hearing requirements. For more information see our SIP Completeness Determination document, prepared in accordance with the Appendix V of 40 CFR 51, made part of the EPA-R06-OAR-2007-0523 docket, and available for public review. Therefore, it is our finding that this revision submitted by Texas under the Act has been adopted by Texas after reasonable notice and public hearing. • The May 2007 SIP submittal requires NO <sup>X</sup> reductions from sources located outside the D/FW nine-County area. The resulting NO <sup>X</sup> reductions should assist in bringing the D/FW area into attainment with the 8-hour ozone NAAQS. Sources outside the D/FW nine county area, now regulated by these rules include, gas-fired stationary reciprocating internal combustion engines operating in East Texas (see 117.3310(a) and 117.3010(a)). NO <sup>X</sup> emissions from these units were not regulated before. These units are located in Texas Counties that are designated as attainment for ozone NAAQS. These Texas Counties are Anderson, Brazos, Burleson, Camp, Cass, Cherokee, Franklin, Freestone, Gregg, Grimes, Harrison, Henderson, Hill, Hopkins, Hunt, Lee, Leon, Limestone, Madison, Marion, Morris, Nacogdoches, Navarro, Panola, Rains, Robertson, Rusk, Shelby, Smith, Upshur, Van Zandt, and Wood. It is estimated that these revisions will result in 22.4 TPD of NO <sup>X</sup> reductions. • The May 2007 SIP submittal provides for additional NO <sup>X</sup> emissions reductions that were not previously a part of the EPA-approved Texas SIP. The May 2007 SIP submittal requires NO <sup>X</sup> reductions from major sources or major source categories not previously regulated. An example listing of such sources or categories is as follows: stationary diesel engines in the D/FW nine-County area (see 117.410(b)(4)), stationary reciprocating internal combustion engines located in the D/FW nine county area (see 117.410(a) and (b)), metallurgical furnaces (see 117.410(b)(8)), container glass furnaces (see 117.410(b)(10)(A)), and fiberglass furnaces (see 117.410(b)(10)(B) through (D)). These new regulations provide an additional 8.88 tons/day of reductions. • The May 2007 SIP submittal provides for additional NO <sup>X</sup> emissions reductions that were not previously a part of the EPA-approved Texas SIP. The May 2007 SIP submittal requires NO <sup>X</sup> reductions from minor sources within the DFW nine county area not previously regulated. See 117.2110(a)(1), and 117.2010(a)(1) and (2). These rules provide additional NO <sup>X</sup> emissions reductions that were not previously a part of the EPA-approved Texas SIP. See section 15 of this document. • The statewide residential water heater rule was revised due to technical infeasibility which means this rule will achieve slightly less reductions than if the approved rule had proved feasible. We believe this small loss in emission reductions will be offset by other measures. This is further discussed in the Technical Support Document. We have discussed the potential impact of the revised water heater rule in our separate action on the 1997 8-hour ozone attainment demonstration for the D/FW area. In that action we explain how the revisions do not interfere with attainment or maintenance of the NAAQS. For the reasons stated above, the provisions of the May 2007 SIP submittal meet the section 110(l) requirements of the Act. 13. What are the NO <sup>X</sup> emissions requirements for major point sources in the D/FW area that we are proposing to approve? We approved NO <sup>X</sup> emissions specifications for stationary sources in 66 FR 15195 published March 16, 2001. In addition to requiring NO <sup>X</sup> emissions control requirements for those sources, we are proposing to approve the following NO <sup>X</sup> emissions requirements for the following affected sources with emissions greater than 50 Tons Per Year
(TPY)in the D/FW 8-hour ozone nonattainment area. We have included the Chapter 117 citation for each source category in the Table 8 below for reference purposes. Table 8.—NO <sup>X</sup> Emissions Specifications for the D/FW 8-Hour Ozone Nonattainment Area Source NO <sup>X</sup> limit Additional information Citation Reciprocating Internal Combustion Engines 2.0 g/hp-hr Natural gas, rich burn, capacity ≥ 300 hp, before January 1, 2000, also a 3.0 g/hp-hr limit of CO 117.410(a)(1)(B)(i). Reciprocating Internal Combustion Engines 0.50 g/hp-hr Natural gas, rich burn, capacity ≥ 300 hp, on or after January 1, 2000, also a 3.0 g/hp-hr limit of CO 117.410(a)(9)(B)(ii). Reciprocating Internal Combustion Engines 0.60 g/hp-hr Gas-fired, rich burn, landfill gas 117.410(b)(4)(A)(i). Reciprocating Internal Combustion Engines 0.50 g/hp-hr Gas-fired, rich burn, not using landfill gas 117.410(b)(4)(A)(ii). Reciprocating Internal Combustion Engines 0.70 g/hp-hr Gas-fired, lean burn, before June 1, 2007, not modified afterwards 117.410(b)(4)(B)(i). Reciprocating Internal Combustion Engines 0.60 g/hp-hr. Gas-fired, lean burn, landfill gas, on or after June 1, 2007 117.410(b)(4)(B)(ii)(I). Reciprocating Internal Combustion Engines 0.50 g/hp-hr Dual-fuel 117.410(b)(4)(B)(ii)(II). Duct Burners 0.032 lb/MMBtu Used in turbine exhausts, rated ≥ 10 MW 117.410(b)(6). Duct Burners 0.15 lb/MMBtu Used in turbine exhausts, 1.0 ( rated < 10 MW 117.410(b)(6). Duct Burners 0.26 lb/MMBtu Used in turbine exhausts, rated < 1.0 MW 117.410(b)(6). Lime Kilns 3.7 lb/ton of CaO Individual kiln basis 117.410(b)(7)(A)(i). Lime Kilns 3.7 lb/ton of CaO Site-wide basis 117.410(b)(7)(A)(ii). Ceramic and Brick Kilns 40% NO X reduction Using daily 2000 calendar year EI 117.410(b)(7)(B)(i). Brick Kilns 0.175 lb/ton of product As option 117.410(b)(7)(B)(ii). Ceramic Kilns 0.27 lb/ton of product As option 117.410(b)(7)(B)(iii). Metallurgical Furnaces 0.087 lb/MMBtu Heat Furnace, March 1-October 31 any year 117.410(b)(8)(A). Metallurgical Furnaces 0.10 lb/MMBtu Reheat Furnace, March 1-October 31 any year 117.410(b)(8)(B). Metallurgical Furnaces 0.45 lb/MMBtu Lead smelting blast cupola and reverberatory 117.410(b)(8)(C). Incinerators 80% NO X reduction Using real emissions of 2000 EI 1117.410(b)(9)(A). Incinerators 0.030 lb/MMBtu As option 117.410(b)(9)(B). Container Glass Furnaces 4.0 lb/ton of glass pulled Melting furnace, within 25% of permitted production capacity, or MAER of permit issued before June 1, 2007 117.410(b)(10)(A)(i), or 117.410(b)(10)(A)(ii). Fiberglass Furnaces 4.0 lb/ton product pulled Mineral wool, cold-top electric 117.410(b)(10)(B). Fiberglass Furnaces 1.45 lb/ton product pulled Mineral wool, regenerative 117.410(b)(10)(C). Fiberglass Furnaces 3.1 lb/ton product pulled Mineral wool, non-regenerative 117.410(b)(10)(D). Curing Ovens 0.036 lb/MMBtu Gas fired, used in mineral wool-type or textile-type fiberglass 117.410(b)(11). Ovens and Heaters 0.036 lb/MMBtu Natural gas-fired 117.410(b)(12). Dryers 0.036 lb/MMBtu Natural gas-fired, used in organic solvent, printing ink, clay, brick, ceramic tile, calcining, and vitrifying processes 117.410(b)(13)(A). Spray Dryers 0.15 lb/MMBtu Natural gas-fired, used in ceramic tile manufacturing processes 117.410(b)(13)(B). The tables in this document are not intended to be exhaustive, but rather provide a guide for readers regarding NO <sup>X</sup> control requirements the affected sources are likely to be required to comply with in conjunction with today's rulemaking action. To determine whether or how your facility would be affected by this particular action, you should refer to the actual text of 30 TAC Chapter 117, and the June 8, 2007 issue of the Texas Register (32 TexReg 3206). We are proposing approval of these NO <sup>X</sup> emissions specifications under Part D of the Act because their resulting emissions reductions will assist Texas in demonstrating attainment of the 8-hour ozone standard in the D/FW 8-hour ozone nonattainment area. Therefore, we are proposing approval of these requirements into the Texas SIP. 14. What are the NO <sup>X</sup> emission requirements for stationary diesel engines in the D/FW area that we are proposing to approve? This SIP revision requires reductions of NO <sup>X</sup> emissions from stationary diesel engines in the D/FW area. The following Table 9 contains a summary of the NO <sup>X</sup> emission specifications for stationary diesel engines in the D/FW area. We have included the Chapter 117 citation for each source category in the Table 9 below for convenience purposes. Table 9.—NO <sup>X</sup> Emission Requirements Stationary Diesel Engines for the D/FW 8-Hour Ozone Nonattainment Area Source NO <sup>X</sup> Emission Specification Citation Diesel engines in service before March 1, 2009: not modified, reconstructed, or relocated on or after March 1, 2009 11.0 gram/hp-hr 117.410(b)(4)(D). Rated less than 50 hp: modified, installed reconstructed, or relocated on or after March 1, 2009 5.0 gram/hp-hr 117.410(b)(4)(E)(i). 50 hp [ rated < 100 hp: modified, installed, reconstructed, or relocated on or after March 1, 2009 3.3 gram/hp-hr 117.410(b)(4)(E)(ii). 100 hp [ rated < 750 hp: installed, modified, reconstructed, or relocated on or after March 1, 2009 2.8 gram/hp-hr 117.410(b)(4)(E)(iii). Rated ≥ 750 hp: installed, modified, reconstructed, or relocated on or after March 1, 2009 4.5 gram/hp-hr 117.310(b)(4)(E)(iv). We are proposing to approve the above-listed NO <sup>X</sup> emission requirements for diesel engines because they are in agreement with those found in 40 CFR section 89.112, and EPA's Document Number 420-R-98-016 dated August 1998, titled “Final Regulatory Impact Analysis: Control of Emissions from Nonroad Diesel Engines.” In addition, the above-listed NO <sup>X</sup> emission requirements for diesel engines are consistent with those we approved for similar units at Table VI of 66 FR 57230 published on November 14, 2001. We are therefore proposing approval of these NO <sup>X</sup> emission requirements under Part D of the Act because their resulting emissions reductions will assist Texas in demonstrating attainment of the 8-hour ozone standard within the D/FW 8-hour ozone nonattainment area. Therefore, we are proposing approval of these requirements into the Texas SIP. 15. What are the emissions specifications for minor sources of NO <sup>X</sup> in D/FW area that we are proposing to approve? These minor sources include stationary reciprocating internal combustion engines that are not a major source of NO <sup>X</sup> (emit, when uncontrolled, less than 50 Tons Per Year
(TPY)of NO <sup>X</sup> ). See sections 117.2100 and 117.2103 for more information. Table 10.—NO <sup>X</sup> Emissions Requirements for Minor Sources in the D/FW Area Source NO <sup>X</sup> emission specification Additional information Citation Reciprocating Internal Combustion Engines 0.60 g/hp-hr Stationary, rich-burn, using landfill gas-fired 117.2110(a)(1)(A)(i). Reciprocating Internal Combustion Engines 0.50 g/hp-hr Stationary, rich-burn, not landfill gas-fired 117.2110(a)(1)(A)(ii). Reciprocating Internal Combustion Engines 0.70 g/hp-hr Stationary, lean-burn, in service before June 1, 2007 117.2010(a)(1)(B)(i). Reciprocating Internal Combustion Engines 0.60 g/hp-hr Stationary, lean-burn, in service on or after June 1, 2007, using landfill gas 117.2010(a)(1)(B)(i)(I). Reciprocating Internal Combustion Engines 0.50 g/hp-hr Stationary, lean-burn, in service on or after June 1, 2007, not using landfill gas 117.2010(a)(1)(B)(i)(II). Reciprocating Internal Combustion Engines 5.83 g/hp-hr Stationary, dual-fuel 117.2010(a)(2). As an alternative, a minor source from the Table 10 above located within the D/FW and having an annual capacity factor of 0.0383 or less may choose emissions specification of 0.060 lb/MMBtu, instead. See 117.2110(a)(4). The NO <sup>X</sup> emissions requirements for the above-listed minor sources of NO <sup>X</sup> and their resulting emissions reductions will assist in demonstrating attainment of the 8-hour ozone NAAQS within the D/FW 8-hour ozone nonattainment area. Therefore, we are proposing approval of these requirements into the Texas NO <sup>X</sup> SIP. 16. What are the NO <sup>X</sup> emissions requirements for stationary RICE in East Texas that we are proposing to approve? The gas-fired stationary reciprocating internal combustion engines located in Anderson, Brazos, Burleson, Camp, Cass, Cherokee, Franklin, Freestone, Gregg, Grimes, Harrison, Henderson, Hill, Hopkins, Hunt, Lee, Leon, Limestone, Madison, Marion, Morris, Nacogdoches, Navarro, Panola, Rains, Robertson, Rusk, Shelby, Smith, Upshur, Van Zandt, or Wood Texas Counties are subject to these requirements. See section 117.3300 for more information. The following Table 11 contains NO <sup>X</sup> emissions requirements and related information for these affected units. On July 19, 2007 TCEQ announced implementation of Texas Senate Bill 2000, passed in 2007 by the 80th Texas Legislative Session. The Bill directs the TCEQ to develop an incentive grant program for the partial reimbursement of capital costs for installing nonselective catalytic reduction
(NSCR)systems to reduce emissions of NO <sup>X</sup> from existing stationary gas-fired rich-burn compressor engines. For more information see *http://www.tceq.state.tx.us/implementation/air/rules/sb2003.html* (URL dating July 20, 2007). Table 11.—NO <sup>X</sup> emissions Requirements for Stationary Reciprocating Internal Combustion Engines in East Texas Source NO <sup>X</sup> Emission specification Additional information Citation Reciprocating Internal Combustion Engines 1.00 g/hp-hr Rich burn, gas-fired, capacity < 500 hp 117.3310(a)(1). Reciprocating Internal Combustion Engines 0.60 g/hp-hr Rich burn, landfill gas-fired, capacity ≥ 500 hp 117.3010(a)(2)(A). Reciprocating Internal Combustion Engines 0.50 g/hp-hr Rich burn, not landfill gas-fired, capacity ≥ 500 hp 117.3010(a)(2)(B). The NO <sup>X</sup> emissions requirements for the stationary reciprocating internal combustion engines in East and Central Texas and their resulting emissions reductions will assist in demonstrating attainment of the 8-hour ozone NAAQS within the Houston-Galveston-Brazoria, D/FW, and Beaumont/Port Arthur areas. Furthermore, these reductions will contribute to the continued maintenance of the standard in the eastern half of the State of Texas, and they enhance the Texas SIP. Therefore, we are proposing approval of these requirements into the May 30, 2007 Texas SIP under part D, and sections 110 and 116 of the Act, respectively. 17. What are the compliance schedules for NO <sup>X</sup> emissions sources that we are proposing to approve? The following Table 12 contains a summary of the NO <sup>X</sup> -related compliance schedules for major sources, utility generating units, and minor sources affected by the May 30, 2007 SIP revision. See sections 117.9000 through 117.9500 for more information. Table 12.—NO <sup>X</sup> Compliance Schedules for Point Sources Under Chapter 117 Source Compliance date Additional information Citation Major, D/FW Install all NO X abatement equipment by no later than May 30, 2007 Increment of Progress
(IOP)requirement 117.9030(a)(1). Major, D/FW Submit initial control plan per 117.450 by no later than June 1, 2008. 8-hour attainment demonstration Comply with emissions requirements by no later than March 1, 2009 when source subject to 117.410(b)(1), (2), (4), (5), (6), (7)(A), (10), and
(14)Requirement 117.9030(b). Diesel and dual-fuel engines comply with testing and hours of operation for testing and maintenance by no later than March 1, 2009 Gas turbines or IC engines claiming run time exemption comply with the run time requirements by no later than March 1, 2009 D/FW Submit initial control plan per 117.1350 by no later than June 1, 2008 Utility electric generation sources 117.9130(a)(1) and (2). Comply with all other requirements by no later than March 1, 2009 Minor, D/FW Rich-burn, gas-fired stationary RICE comply with NO X requirements by no later than March 1, 2009 RICE fired with different fuel types 117.9210. Lean-burn, gas-fired stationary RICE comply with NO X requirements by no later than March 1, 2010 Diesel-fired and dual-fuel stationary RICE comply with NO X requirements by no later than March 1, 2009 East and Central Texas Updated final control plan per 117.3054 be submitted by no later than January 31, 2007 Utility electric generation sources 117.9300(2)(B). East Texas Stationary RICE comply with NO X requirements by no later than March 1, 2010 East Texas combustion sources 117.9340(a). Including these compliance dates, summarized in Table 12 above, in the rule provides for enforceability and practicability of the NO <sup>X</sup> rule, and enhances the May 30, 2007 Texas SIP; therefore, we are proposing their approval into the May 30, 2007 Texas SIP. III. Proposed Actions Today, we are proposing to approve revisions to the 30 TAC Chapter 117 into the Texas SIP. This rulemaking covers four separate actions. First, we are proposing to approve the repeal of all non-substantive changes to the SIP's Chapter 117 rules and the reformatting of current Chapter 117 because the reformatted revision will better accommodate future additions/revisions to the rules. Second, we are proposing to approve substantive revisions to the current NO <sup>X</sup> SIP's Chapter 117 rules for D/FW NO <sup>X</sup> major point sources. Third, we are proposing to approve substantive revisions to the current Texas SIP's Chapter 117 rules for D/FW minor sources of NO <sup>X</sup> . Fourth, we are proposing to approve substantive revisions to the current Texas SIP's Chapter 117 rules for combustion sources in East Texas. These NO <sup>X</sup> reductions will assist the D/FW area in attaining the 8-hour ozone NAAQS. IV. 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 proposed 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 proposed 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 (Public Law 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. Authority: 42 U.S.C. 7401 *et seq.* List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen oxide, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: July 1, 2008. Richard E. Greene, Regional Administrator, Region 6. [FR Doc. E8-15814 Filed 7-10-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2007-1147; FRL-8690-4] Approval and Promulgation of Implementation Plans; Texas; Control of Emissions of Nitrogen Oxides (NO X ) From Cement Kilns AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing approval of revisions to the Texas State Implementation Plan (SIP). The State of Texas submitted this SIP revision to the 30 TAC Chapter 117 to us on May 30, 2007 (May 30, 2007 submittal) concerning control of emissions of NO <sup>X</sup> from cement kilns operating in Bexar, Comal, Ellis, Hays, and McLennan Counties of Texas. We are proposing to approve the cement kilns provisions of the May 30, 2007 submittal for cement kilns operating in these five Texas Counties. We are also proposing to approve the May 30, 2007 submittal as meeting the Reasonably Available Control Technology
(RACT)requirements for NO <sup>X</sup> emissions from cement kilns operating in the Dallas Fort Worth (D/FW) 8-hour ozone nonattainment area. The NO <sup>X</sup> emissions controls associated with this SIP revision will assist the D/FW area to attain the Federal 8-hour ozone National Ambient Air Quality Standards (NAAQS). We are proposing approval of this action as meeting sections 110 and 182 of the Federal Clean Air Act (the Act). DATES: Comments must be received on or before August 11, 2008. ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-2007-1147, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • *U.S. EPA Region 6 “Contact Us” Web site: http://epa.gov/region6/r6coment.htm.* Please click on “6PD” (Multimedia) and select “Air” before submitting comments. • *E-mail:* Mr. Guy Donaldson at *donaldson.guy@epa.gov.* Please also send a copy by email to the person listed in the FOR FURTHER INFORMATION CONTACT section below. • *Fax:* Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-665-7263. • *Mail:* Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. • *Hand or Courier Delivery:* Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4 p.m. weekdays except for legal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R06-OAR-2007-1147. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information the disclosure of which is restricted by statute. Do not submit information through *http://www.regulations.gov* or e-mail that you consider to be CBI or otherwise protected from disclosure. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment: Texas Commission on Environmental Quality (TCEQ), Office of Air Quality, 12124 Park 35 Circle, Austin, Texas 78753. FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone
(214)665-6691, fax
(214)665-7263, e-mail address *shar.alan @epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document “we,” “us,” and “our” refer to EPA. I. General Information What Should I Consider as I Prepare My Comments for EPA? A. *Submitting CBI.* Do not submit this information to EPA through *http://www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations
(CFR)part 2. B. *Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number. • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. II. Background Table of Contents 1. What are we proposing to approve? 2. What sections of the May 30, 2007 submittal will become part of Texas SIP? 3. What sections of the May 30, 2007 submittal will not become a part of Texas SIP? 4. What Texas Counties will this rulemaking affect? 5. What are NO <sup>X</sup> ? 6. What is Ozone and why do we regulate it? 7. What is a SIP? 8. What are the NO <sup>X</sup> control emissions requirements that we approved for Texas under the 1-hour ozone SIP? 9. What are the NO <sup>X</sup> control emissions requirements that we are proposing to approve for Texas under the 8-hour ozone SIP? 10. What is the proposed compliance schedule for cement kilns? 1. What are we proposing to approve? On May 30, 2007, TCEQ submitted rule revisions to 30 TAC, Chapter 117, “Control of Air Pollution from Nitrogen Compounds,” as a revision to the Texas SIP, identified by TCEQ as rule project No. 2006-004-117-EN, for cement kilns operating in Bexar, Comal, Ellis, Hays, and McLennan Counties. In this rulemaking, we are proposing to approve the NO <sup>X</sup> control requirements for cement kilns operating in these five Texas Counties. See sections 2, 3, 4, 8, and 9 of this document for more information. The NO <sup>X</sup> emissions controls associated with this SIP revision will assist the D/FW area to attain the Federal 8-hour ozone NAAQS, and will enhance the Texas SIP. We are also proposing to approve the cement kilns provisions of the May 30, 2007 submittal as meeting the RACT requirements for NO <sup>X</sup> emissions from cement kilns operating in the D/FW 8-hour ozone nonattainment area. By proposing to approve the cement kilns provisions of the May 30, 2007 submittal we are stating that Texas is meeting the NO <sup>X</sup> RACT requirements for cement kilns in the D/FW area. The EPA has defined RACT as the lowest emission limitation that a particular source can meet by applying a control technique that is reasonably available considering technological and economic feasibility. See 44 FR 53761, September 17, 1979. This requirement is established by sections 182(b)(2) and 182(f) of the Act. These two sections, taken together, establish the requirements for Texas to submit a NO <sup>X</sup> RACT regulation for cement kilns (a major source of NO <sup>X</sup> ) in ozone nonattainment areas classified as moderate (such as D/FW) and above. A State may choose to develop its own RACT requirements on a case by case basis, considering the economic and technical circumstances of an individual source. In addition, section 183(c) of the Act provides that we will issue technical documents which identify alternative controls for stationary sources of NO <sup>X</sup> . The EPA publishes the NO <sup>X</sup> related Alternative Control Techniques documents
(ACTs)for this purpose. The information in the ACT documents is generated from literature sources and contacts, control equipment vendors, EPA papers, engineering firms, and Federal, State, and local regulatory agencies. States can use information in the EPA ACTs to develop their RACT regulations. For a listing of EPA's ACT-related documents, including the ACT document for Cement Manufacturing, see *http://www.epa.gov/ttn/naaqs/ozone/ctg_act/index.htm* (URL dated April 22, 2008). The Chapter 117 cement kilns provisions were last approved by EPA at 69 FR 15681 published on March 26, 2004. 2. What sections of the May 30, 2007 submittal will become part of Texas SIP? Table 1 below contains a summary list of the sections of 30 TAC, Chapter 117 that Texas proposed on May 30, 2007, for cement kilns to become part of the Texas SIP. Table 1.—Section Numbers and Section Descriptors of 30 TAC, Chapter 117 Affected by the Cement Kilns Rule Section No. Description Section 117.3100 Applicability. Section 117.3101 Cement Kilns Definitions. Section 117.3103 Exemptions. Section 117.3110 Emission Specifications. Section 117.3120 Source Cap. Section 117.3123 Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control Requirements. Section 117.3140 Continuous Demonstration of Compliance. Section 117.3142 Emission Testing and Monitoring for Eight-Hour Attainment Demonstration. Section 117.3145 Notification, Recordkeeping, and Reporting Requirements. Section 117.9320 Compliance Schedule for Cement Kilns. You can find complete TCEQ's rules and regulations at *http://www.tceq.state.tx.us/rules/indxpdf.html.* 3. What sections of the May 30, 2007 submittal will not become a part of Texas SIP? Per TCEQ's request the following sections, listed in Table 2 below, of the cement kilns rule will not become a part of EPA-approved Texas SIP. These sections mainly pertain to the control of ammonia, that is not a precursor to ozone, and are not required to be a part of the SIP. Table 2.—Sections of Chapter 117 Not in EPA-Approved Texas SIP Section No. Explanation 117.3123(f), and 117.3125 Not a part of EPA-approved Texas SIP. Although the above sections of 30 TAC Chapter 117 are not to become a part of Texas SIP, they will continue to remain enforceable at the State level. 4. What Texas Counties will this rulemaking affect? Table 3 below lists the five Texas Counties that will be affected by the cement kilns rule. Table 3.—Texas Counties Affected by Cement Kiln Rulemaking of 2007 Texas counties Explanation Bexar, Comal, Ellis, Hays, and McLennan See section 117.3101. 5. What are NO <sup>X</sup> ? Nitrogen oxides belong to the group of criteria air pollutants. NO <sup>X</sup> are produced from burning fuels, including gasoline and coal. Nitrogen oxides react with volatile organic compounds
(VOC)to form ozone or smog, and are also major components of acid rain. Also see *http://www.epa.gov/air/urbanair/nox/.* 6. What is ozone and why do we regulate it? Ozone is a gas composed of three oxygen atoms. Ground level ozone is generally not emitted directly from a vehicle's exhaust or an industrial smokestack, but is created by a chemical reaction between NO <sup>X</sup> and VOCs in the presence of sunlight and high ambient temperatures. Thus, ozone is known primarily as a summertime air pollutant. NO <sup>X</sup> and VOCs are precursors of ozone. Motor vehicle exhaust and industrial emissions, gasoline vapors, chemical solvents and natural sources emit NO <sup>X</sup> and VOCs. Urban areas tend to have high concentrations of ground-level ozone, but areas without significant industrial activity and with relatively low vehicular traffic are also subject to increased ozone levels because wind carries ozone and its precursors hundreds of miles from their sources. Repeated exposure to ozone pollution may cause lung damage. Even at very low concentrations, ground-level ozone triggers a variety of health problems including aggravated asthma, reduced lung capacity, and increased susceptibility to respiratory illnesses like pneumonia and bronchitis. It can also have detrimental effects on plants and ecosystems. 7. What is a SIP? The SIP is a set of air pollution regulations, control strategies, other means or techniques and technical analyses developed by the state, to ensure that the state meets the NAAQS. The SIP is required by Section 110 and other provisions of the Act. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emissions inventories, monitoring networks, and modeling demonstrations. Each state must submit these regulations and control strategies to EPA for approval and incorporation into the federally-enforceable SIP. Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. 8. What are the NO <sup>X</sup> control emissions requirements that we approved for Texas under the 1-hour ozone SIP? We approved the NO <sup>X</sup> control emission requirements for cement kilns at 69 FR 15681 published on March 26, 2004. See Table III of that document. We have included that Table in our TSD prepared for this rulemaking action. 9. What are the NO <sup>X</sup> control emissions requirements that we are proposing to approve for Texas under the 8-hour ozone SIP? Under today's rulemaking action, the NO <sup>X</sup> control requirements that we approved on March 26, 2004 (69 FR 15681) for cement kilns operating in Texas Counties of Bexar, Comal, Hays, and McLennan still will continue to remain in effect. Ellis County is located within the D/FW 8-hour ozone nonattainment area. The ozone season for the D/FW area is March 1 through October 31 of each calendar year. See 40 CFR 58, Appendix D, Table D-3, and 40 CFR 81.39. For Ellis County, during the non-ozone season (November 1 through end-of-February of each calendar year), the cement kilns NO <sup>X</sup> control requirements that we approved at 69 FR 15681 will continue to remain in effect. However, during the ozone season, March 1 through October 31 of each calendar year, the cement kilns in Ellis County must comply with a source cap formula calculated and expressed in Tons Per Day
(TPD)of actual NO <sup>X</sup> emissions, per site, on a 30-day rolling average basis. See equation 117.3123(b). The following Table 5 contains a summary list of NO <sup>X</sup> control requirements for cement kilns under the 8-hour ozone SIP. Table 5.—NO <sup>X</sup> Control Requirements for Cement Kilns Under the 8-Hour Ozone SIP Source County NO <sup>X</sup> emission requirement Citation Long wet kiln Bexar, Comal, Hays, McLennan 6.0 lb NO X /ton of clinker produced 117.3110(a)(1)(A). Long dry kiln Bexar, Comal, Hays, McLennan 5.1 lb NO X /ton clinker of produced 117.3110(a)(2). Preheater kiln Bexar, Comal, Hays, McLennan 3.8 lb NO X /ton of clinker produced 117.3110(a)(3). Precalciner or preheater-precalciner kiln Bexar, Comal, Hays, McLennan 2.8 lb NO X /ton of clinker produced 117.3110(a)(4). Long wet kiln Ellis 4.0 lb NO <sup>X</sup> /ton of clinker produced, outside D/FW ozone season 117.3110(a)(1)(B). Preheater kiln Ellis 3.8 lb NO <sup>X</sup> /ton of clinker produced, outside D/FW ozone season 117.3110(a)(3). Long dry kiln Ellis 5.1 lb NO <sup>X</sup> /ton clinker of produced, outside D/FW ozone season 117.3110(a)(2). Precalciner or preheater-precalciner kiln Ellis 2.8 lb NO <sup>X</sup> /ton of clinker produced, outside D/FW ozone season 117.3110(a)(4). Portland cement kiln Ellis During D/FW ozone season, 30-day rolling average, source cap equation 117.3123(b), with the 2003-2005 reported average annual clinker production, limit is equivalent to 1.7 lb NO <sup>X</sup> /ton of clinker produced for dry preheater-precalciner or precalciner kilns, or 3.4 lb NO <sup>X</sup> /ton of clinker produced for long wet kilns 117.3123(b). The cement kilns rule does not require or endorse a specific post combustion NO <sup>X</sup> control technology, and allows the owners or operators to choose their preferred method of compliance as long as the source cap limit, per site, is being met. These NO <sup>X</sup> control requirements will result in a 9.7 TPD of NO <sup>X</sup> reduction from cement kilns in Ellis County, and will enhance the Texas SIP. We contend that the above NO <sup>X</sup> control requirements for existing cement kilns in the D/FW area are more stringent than those found in our reference documents “Alternative Control Techniques Document—NO <sup>X</sup> Emissions from Cement Manufacturing” EPA-453/R-94-004, and “NO <sup>X</sup> Control Technologies for the Cement Industry” Final Report, EPA Contract No. 68-D98-026, dated September 19, 2000, and are comparable to or more stringent than controls to be implemented in other parts of the country for RACT purposes. Therefore, we are proposing their approval into Texas SIP, and as meeting the RACT requirement for the D/FW 8-hour ozone nonattainment area. See our TSD prepared in conjunction with this rulemaking action for more information. 10. What are the compliance schedules for NO <sup>X</sup> emissions from cement kilns that we are proposing to approve? The compliance schedule for cement kilns located in Texas Counties of Bexar, Comal, Hays, and McLennan will continue to remain in effect as we approved them at 69 FR 15681. See Table IV of that document. We have included that Table in our TSD prepared for this rulemaking action. The following Table 6 contains summary of the NO <sup>X</sup> compliance schedule-related information for cement kilns in Ellis County. See section 117.9320(c) for more information. Table 6.—NO <sup>X</sup> Compliance Schedules for Cement Kilns in Ellis County Under Chapter 117 Source Compliance date Additional information Citation Cement Kilns—Ellis County Comply with testing, monitoring, notification, recordkeeping, and reporting requirements as soon as practicable but no later than March 1, 2009 8-hour attainment demonstration requirement 117.9320. We believe that including the compliance dates in the rule provides for enforceability and practicability of the NO <sup>X</sup> rule, and enhances the Texas SIP. The March 1, 2009 compliance date for cement kilns in Ellis County is consistent with the implementation requirement set forth in 40 CFR 51.912(a)(3). Therefore, we are proposing their approval into Texas SIP, and as meeting the RACT requirement for the D/FW 8-hour ozone nonattainment area. III. Proposed Action Today, we are proposing to approve revisions to the 30 TAC Chapter 117 into Texas SIP. In this rulemaking we are proposing to approve the cement kilns provisions of the May 30, 2007 submittal for cement kilns operating in Bexar, Comal, Ellis, Hays, and McLennan Counties of Texas. We are also proposing to approve the May 30, 2007 submittal as meeting the RACT requirements for NO <sup>X</sup> emissions from cement kilns operating in the D/FW 8-hour ozone nonattainment area. These NO <sup>X</sup> reductions will assist the D/FW area to attain the 8-hour ozone NAAQS, and enhance the Texas SIP. IV. 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 proposes to approve 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. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen oxide, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: July 1, 2008. Richard E. Greene, Regional Administrator, Region 6. [FR Doc. E8-15812 Filed 7-10-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 216 and 300 [Docket No. 070717339-8765-02] RIN 0648-AV37 International Fisheries; Pacific Tuna Fisheries; Revisions to Regulations for Vessels Authorized To Fish for Tuna and Tuna-like Species in the Eastern Tropical Pacific Ocean and to Requirements for the Submission of Fisheries Certificates of Origin AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; collection-of-information requirements; request for comments. SUMMARY: NMFS proposes to revise regulations governing vessels authorized by the United States to fish for tuna and tuna-like species in the eastern tropical Pacific Ocean (ETP). This proposed rule would update and clarify regulations promulgated by NMFS to implement the Marine Mammal Protection Act, the Tuna Conventions Act, the Dolphin Protection Consumer Information Act, and resolutions adopted by the Inter-American Tropical Tuna Commission (IATTC) and by the Parties to the Agreement on the International Dolphin Conservation Program (AIDCP). This proposed rule would modify the procedures and requirements for the Vessel Register, the list of vessels authorized to fish for tuna and tuna-like species in the ETP. Requirements for the submission of certifications by importers would also be revised. This proposed rule is intended to clarify the regulations, facilitate management of U.S. vessels, and update the regulations to be consistent with resolutions adopted by the members of the IATTC and the Parties to the AIDCP. DATES: Comments on the proposed regulations and collection-of-information requirements must be received by 5 p.m. Pacific Standard Time, on August 11, 2008. A public hearing will be held on July 28, 2008, at 9 a.m. ADDRESSES: You may submit comments on the proposed rule and on the collection of information requirements, identified by RIN 0648-AV37, by any one of the following methods: • *Electronic Submissions:* Submit all electronic public comments via the Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(562)980-4027, Attention: Susan Wang. • *Mail:* Submit written comments to Susan Wang, National Marine Fisheries Service, Southwest Region, Protected Resources Division, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to the Southwest Region and by e-mail to *David_Rostker@omb.eop.gov* , or by fax to
(202)395-7285. *Instructions:* All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (e.g., name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (please enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. A public hearing will be held at NMFS, Southwest Regional Office, 501 West Ocean Boulevard, Suite 3400, Long Beach, CA 90802-4213. Photo identification is required to enter the building. FOR FURTHER INFORMATION CONTACT: Susan Wang, NMFS, Southwest Region, Protected Resources Division, at
(562)980-4199. SUPPLEMENTARY INFORMATION: Background The United States is a member of the IATTC, established in 1949 under the Convention for the Establishment of an Inter-American Tropical Tuna Commission (Convention). The IATTC provides an international forum to ensure the effective conservation and management of highly migratory species of fish in the Convention Area. The Convention Area is defined to include waters of the ETP bounded by the coast of the Americas, the 40° N. latitude and 40° S. latitude, and the 150° W. longitude (50 Code of Federal Regulations
(CFR)section 300.21). The IATTC oversees fishery management issues, such as assessing the status of tuna stocks, managing the cumulative capacity of vessels fishing in the Convention Area, addressing bycatch of non-target and protected species, and imposing time-area closures to conserve tuna stocks. Resolutions under the IATTC are adopted by consensus and are binding on the members of the IATTC. Members of the IATTC and cooperating non-members are responsible for implementation of IATTC resolutions. In the United States, the Tuna Conventions Act (16 U.S.C. 951 *et seq.* ) authorizes the Secretary of Commerce to promulgate regulations implementing IATTC resolutions. The Secretary's authority has been delegated to the Assistant Administrator for Fisheries, NMFS. The United States is also a Party to the AIDCP. The AIDCP was established in May 1998 when eight nations, including the United States, signed a binding, international agreement to implement the International Dolphin Conservation Program (IDCP). The agreement became effective on February 15, 1999, and provides greater protection to dolphin stocks and enhanced conservation of yellowfin tuna and other living marine resources in the ETP. The IDCP and resolutions adopted by the Parties to the AIDCP are implemented domestically under the Marine Mammal Protection Act
(MMPA)(16 U.S.C. 1361 *et seq.* ). This proposed rule would revise regulations at 50 CFR parts 216 and 300 to facilitate management of U.S. vessels authorized to fish for tuna and tuna-like species in the Convention Area and to ensure consistency between operation of these vessels and resolutions adopted by the IATTC and the IDCP. First, collection of a vessel photograph and vessel information would be required for commercial fishing vessels and commercial passenger fishing vessels (CPFVs) authorized to fish for tuna and tuna-like species in the Convention Area. Second, regulations for tuna purse seine vessels would be revised to require:
(1)Annual written notification to list a small vessel as active or inactive;
(2)written notification of the intent to transfer a vessel to foreign registry and flag;
(3)payment of an ETP operator permit application fee; and
(4)for vessels authorized to set on dolphins, vessel inspections twice per year and the use of high-intensity floodlights. Additional criteria would be added:
(1)to consider a request for active status as frivolous if a purse seine vessel was listed as active but did not fish for tuna at all in the Convention Area; and
(2)to remove vessels from the Vessel Register if the owner lacks valid vessel documentation, or, for tuna purse seine vessels, if the owner has made a frivolous request or has notified NMFS of the intent to transfer the vessel to foreign registry and flag. This rule would require importers to submit certifications within 10 days of importing a shipment into the United States, rather than 30 days. Finally, this rule would require electronic submissions of certifications by importers to be in Portable Document Format (PDF). In addition, this rule would make numerous non-substantive modifications and clarifications to the regulations. Definitions The definition for “Tuna product” would be revised in 50 CFR 216.3 to clarify that tuna products include only products intended for human consumption. A definition for “Tuna” would be added to specify that the term refers to fish of the genus Thunnus (i.e., albacore tuna, bigeye tuna, bluefin tuna, longtail tuna, southern bluefin tuna, and yellowfin tuna) and the species *Euthynnus (Katsuwonus) pelamis* (i.e., skipjack tuna). Definitions for “Albacore tuna,” “Bigeye tuna,” “Bluefin tuna,” “Longtail tuna,” “Skipjack tuna,” “Southern bluefin tuna,” and “Yellowfin tuna” would also be added to 50 CFR 216.3 to identify the genus and species referred to by these common names. In 50 CFR 300.21, the definition for “Vessel Register” would be removed and replaced with a definition for “Regional Vessel Register” to include all commercial fishing vessels and CPFVs authorized to fish for tuna and tuna-like species in the Convention Area, consistent with the definition used by the IATTC. A definition for “Commercial passenger fishing vessel” would be added to clarify that CPFVs are vessels licensed for commercial passenger fishing purposes from which passengers are permitted to conduct sportfishing activities. A definition for “Tuna” would also be added to specify that the term refers to fish of the genus Thunnus and the species *Euthynnus (Katsuwonus) pelamis* (i.e., skipjack tuna). Vessel Register In June 2000, the IATTC adopted a “Resolution on a Regional Vessel Register” (C-00-06) to establish a register of all vessels authorized to fish for tuna and tuna-like species in the Convention Area. To maintain the Regional Vessel Register (Vessel Register), the IATTC requires each member nation to submit specific information for all vessels authorized to fish for tuna and tuna-like species in the Convention Area. The information required for the IATTC Vessel Register includes: The vessel name and registration number; a photograph of the vessel with the registration number legible; previous vessel name(s) and flag; port of registry; the name and address of the owner(s) and managing owner(s); International Radio Call Sign; where and when built; length, beam, and moulded depth; gross tonnage, fish hold capacity in cubic meters, and carrying capacity in metric tons; engine horsepower; and type of fishing method(s). Under current regulations at 50 CFR 300.22(b), submission of vessel information to NMFS is mandatory for large tuna purse seine vessels but voluntary for all other vessels. NMFS proposes to revise 50 CFR 300.22(b) to require the collection of vessel photographs and vessel information for all U.S. commercial fishing vessels and CPFVs authorized to fish for tuna and tuna-like species in the Convention Area, so that all of these vessels would be included on the Vessel Register. Currently, about 2,100 U.S. commercial fishing vessels and CPFVs are authorized under several different permit systems to fish for tuna and tuna-like species in the Convention Area, including:
(1)ETP tuna purse seine vessel permits (50 CFR 216.24);
(2)Pacific Highly Migratory Species
(HMS)vessel permits (50 CFR part 660); and
(3)for vessels based in Hawaii and the U.S. Pacific Islands, High Seas Fishing Compliance Act (HSFCA) permits (50 CFR part 300). Owners of large tuna purse seine vessels must obtain both an ETP tuna purse seine vessel permit and an HSFCA permit in order to have a vessel be categorized as active on the Vessel Register. Together, the applications for the ETP tuna purse seine vessel permit and HSFCA permit cover all of the required Vessel Register information except for the vessel photograph. This proposed rule would revise the ETP tuna purse seine vessel permit application to require submission of a vessel photograph with the registration number legible. This revision is subject to review and approval by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* The Pacific HMS permit application covers all of the required Vessel Register information except for the vessel photograph, and the HSFCA permit application covers all of the required information except for the vessel photograph, carrying capacity, and type of fishing method(s). Revisions to the Pacific HMS permit application and the HSFCA permit application to collect the required additional information are planned as actions separate from this proposed rule. 50 CFR 300.22(a) requires the master or person in charge of a commercial fishing vessel or CPFV listed on the Vessel Register to keep an accurate log of operations of the vessel. This rule would update this provision to reflect differences in these reporting requirements for tuna purse seine vessels greater than 400 st (362.8 mt) carrying capacity compared to reporting requirements for tuna purse seine vessels of 400 st (362.8 mt) carrying capacity or less and for non-purse seine vessels. The rule would revise 50 CFR 300.22(a) to clarify that for tuna purse seine vessels greater than 400 st (362.8 mt) carrying capacity, the master or person in charge of the vessel must maintain and submit to the IATTC the record and bridge log issued by the IATTC, or a general logbook that includes for each day the date, noon position, and the tonnage of fish on board by species. For tuna purse seine vessels of 400 st (362.8 mt) carrying capacity or less and for non-purse seine vessels on the Vessel Register, maintaining and submitting reporting forms (logbooks) under existing state or Federal regulations (e.g., longline logbooks for Pacific pelagic longline vessels, described in 50 CFR 660.14(a)) would be sufficient to comply with this requirement. On June 28, 2002, the IATTC adopted a “Resolution on the capacity of the tuna fleet operating in the ETP (revised)” (Resolution C-02-03) to limit the total capacity of the ETP tuna purse seine fleet and to establish a subset list of active and inactive tuna purse seine vessels as part of the Vessel Register. The U.S. tuna purse seine fleet operating in the ETP is limited to 8,969 metric tons
(mt)carrying capacity, thus limiting the number of vessels allowed to actively participate in the fishery each year. On April 12, 2005, NMFS issued a final rule (69 FR 19004) establishing procedures at 50 CFR 300.22(b) for U.S. tuna purse seine vessels to be listed on the Vessel Register and be categorized as active or inactive, and establishing criteria for the removal of vessels from the Vessel Register. The active and inactive list is valid through December 31 of each year. The paragraphs below describe proposed revisions to the procedures at 50 CFR 300.22(b) for tuna purse seine vessels to be listed on the Vessel Register and to requirements for tuna purse seine vessels listed on the Vessel Register, including one requirement that is also applicable to non-purse seine commercial fishing vessels and CPFVs authorized to fish for tuna and tuna-like species in the ETP. Under 50 CFR 300.22(b), tuna purse seine vessels of 400 short tons
(st)(362.8 mt) carrying capacity or less must be categorized as active on the Vessel Register if landings of tuna caught in the Convention Area comprise more than 50 percent of the vessel's total landings, by weight, for a given calendar year. To request active or inactive status for a vessel, the vessel owner must submit payment of the vessel assessment fee (also called the observer placement fee) associated with active or inactive status. Beginning in 2006, the Parties to the AIDCP have required payment of the vessel assessment fee only if a vessel:
(1)Is listed as active and is required by the AIDCP to carry an observer; or
(2)is listed as inactive and exceeds 400 st (362.8 mt) carrying capacity (Resolution A-06-01, Vessel Assessments and Financing). Tuna purse seine vessels of 400 st (362.8 mt) carrying capacity or less are required to carry an observer only if the vessel is suspected of intentionally setting on dolphins (AIDCP, Resolution on vessels of less than 363 mt capacity, October 10, 2002). None of the U.S. tuna purse seine vessels of 400 st (362.8 mt) carrying capacity or less are required to carry an observer and therefore have not been required to pay the vessel assessment fee since 2006. Under the current regulations, payment of the fee is the only mechanism for vessel owners to request active or inactive status for vessels of that size. To address this issue, the proposed rule would revise 50 CFR 300.22(b) to require owners of purse seine vessels of 400 st (362.8 mt) carrying capacity or less to submit annual written notification to request a vessel be categorized as active or inactive on the Vessel Register. To request active status, vessel owners or managing owners would be required to submit written notification by fax to the Administrator, Southwest Region, including, but not limited to, all of the required Vessel Register information as described above and the vessel owner or managing owner's signature and business telephone and fax numbers. A faxed copy would provide a date and time stamp to prioritize applications on a first-come, first-served basis. Prioritization is necessary when the total capacity of vessels applying for active status exceeds the U.S. tuna purse seine fleet's capacity (8,969 mt). To request inactive status, vessel owners or managing owners would be required to submit written notification by mail to the Administrator, Southwest Region, including, but not limited to, the vessel name, registration number, and vessel owner or managing owner's name, signature, business address, and business telephone and fax numbers. 50 CFR 300.22(b) would also be revised to require payment of the vessel assessment fee for tuna purse seine vessels of 400 st (362.8 mt) carrying capacity or less only if the vessel is categorized as active on the Vessel Register and is required to carry an observer. 50 CFR 300.22(b)(4)(ii) states that a request for active status on the Vessel Register is considered to be frivolous if a tuna purse seine vessel is categorized as active for a given calendar year, but less than 20 percent of the vessel's total landings, by weight, in that same year is comprised of tuna harvested by purse seine in the Convention Area. The current regulation does not address cases in which a vessel did not fish for tuna in the Convention Area at all (i.e., zero landings). This rule would add to 50 CFR 300.22(b)(4)(ii) to allow a request for active status to be considered frivolous if a purse seine vessel was categorized as active but did not fish for tuna in the Convention Area at all in that same year, to ensure all cases constituting a frivolous request are covered. 50 CFR 300.22(b)(5) would be revised to add to criteria under which the Administrator, Southwest Region, may remove vessels from the Vessel Register. First, criteria would be added to allow removal of a vessel if the vessel's state registration or documentation with the U.S. Coast Guard
(USCG)is not valid. Vessels must have valid state registration or USCG documentation in order to fish in navigable waters of the U.S. or in the U.S. exclusive economic zone. Vessels without valid state registration or vessel documentation are no longer authorized by the United States to fish for tuna or tuna-like species in the Convention Area and must be removed from the Vessel Register. Second, criteria would be added to allow removal of a tuna purse seine vessel from the Vessel Register if the owner's request for active status has been determined to be frivolous. Removal of these vessels may be necessary to make room for other U.S. purse seine vessels desiring to actively fish for tuna in the Convention Area. Finally, criteria would be added to allow removal of a tuna purse seine vessel from the Vessel Register if the owner or managing owner submits written notification of the intent to transfer the vessel to foreign registry and flag. Removal of a tuna purse seine vessel from the Vessel Register prior to transfer is necessary to protect the U.S. tuna purse seine fleet's capacity limit. Each U.S. vessel on the active tuna purse seine list holds a certain portion (equal to the vessel's carrying capacity) of the U.S. fleet's capacity. If a vessel listed as active is transferred, the capacity held by that vessel could be transferred with it to the foreign nation, resulting in a loss of operating capacity for the U.S. and an increase in operating capacity for the foreign nation. Removal of the vessel from the Vessel Register prior to transfer would prevent this transfer of capacity. Under current regulations, NMFS may remove a tuna purse seine vessel from the Vessel Register prior to transfer, but only if the USCG or the U.S. Maritime Administration (MARAD) notifies NMFS that the vessel owner has submitted an application for transfer. Under an existing Memorandum of Understanding (MOU), MARAD already provides notification to NMFS for all large purse seine vessels requiring MARAD approval prior to transfer. However, NMFS does not have a similar agreement with the USCG regarding notification at this time. To ensure NMFS is notified prior to transfers, this rule would add new paragraph 50 CFR 300.22(b)(8) requiring owners of tuna purse seine vessels listed on the Vessel Register to submit written notification to the Administrator, Southwest Region, prior to submitting an application to transfer a vessel to foreign registry and flag. Written notification would include the vessel name and registration number; the estimated submission date of the application to transfer the vessel to foreign registry and flag; and the vessel owner or managing owner's name and signature. Receipt of the written notification would be required at least 10 business days prior to submitting the application for transfer, to ensure NMFS has sufficient time to remove the vessel from the Vessel Register prior to the transfer. This rule would also add a prohibition at 50 CFR 300.24(j) making it illegal for vessel owners to fail to provide this written notification to the Administrator, Southwest Region, at least 10 business days prior to submitting the application for transfer. The written notification requirement would not apply to owners of vessels that must obtain approval by MARAD prior to transfer because MARAD already provides notification to NMFS. In accordance with available vessel capacity, vessels removed from the Vessel Register could be placed on the Vessel Register again by the United States or any government with jurisdiction over the vessel that also participates in the IATTC. 50 CFR 300.25(a) states that the Administrator, Southwest Region, will directly notify owners and agents of U.S. tuna vessels about fishery management recommendations made by the IATTC and approved by the Department of State, and that approved IATTC recommendations will be announced in the **Federal Register** . This proposed rule would revise 50 CFR 300.25(a) to remove the requirement of direct notification. Instead, NMFS would notify the public of IATTC recommendations and resolutions through appropriate rulemaking in the **Federal Register** . Publications in the **Federal Register** would summarize the new fishery management recommendations and resolutions and respond to public comments received. ETP Tuna Purse Seine Vessel and Operator Permit Applications and Fees 50 CFR 216.24(b)(4)(i) to (b)(4)(v) and 50 CFR 216.24(b)(5)(i) to (b)(5)(v) list all of the information collected on the ETP vessel and operator permit applications. This proposed rule would remove these paragraphs and add a general statement that an ETP vessel or operator permit application obtained from NMFS must be completed and submitted to request an ETP vessel or operator permit. Changes to information collected from the public in permit applications would still require appropriate rulemaking in the **Federal Register** and approval by the OMB under the PRA. 50 CFR 216.24(b)(6)(ii) would also be revised to allow NMFS to collect an operator permit application fee to cover the administrative costs associated with processing and issuing operator permits. Under 50 CFR 216.24(b)(6)(iii), payment of the vessel assessment fee is required for tuna purse seine vessels:
(1)Listed as active on the Vessel Register and that are required to carry an observer;
(2)listed as inactive on the Vessel Register and that exceed 400 st (362.8 mt) carrying capacity;
(3)licensed under the South Pacific Tuna Treaty
(SPTT)that exercise their option to make a single trip into the ETP per calendar year;
(4)not listed on the Vessel Register at the beginning of the calendar year and for which active status is requested to replace a vessel removed from active status during the year; and
(5)listed as inactive at the beginning of the calendar year and for which active status is requested to replace a vessel removed from active status during the year. The regulations establish deadlines for payment of the fee, except in the case of SPTT vessels and replacement vessels not listed at the beginning of the calendar year or in the previous year. 50 CFR 216.24(b)(6)(iii)(F) states that all payments made after the specified dates are subject to a 10-percent surcharge; however, only those payments subject to and made after the deadline are subject to a 10-percent surcharge. 50 CFR 216.24(b)(6)(iii)(F) would be revised to state that the following classes of vessels for which payments were made after the specified dates would not be subject to a 10-percent surcharge:
(1)vessels licensed under the SPTT making a single trip into the ETP; and
(2)vessels not listed at the beginning of the calendar year or in the previous year, and for which active status was requested to replace a vessel removed from active status during the year. A 10-percent surcharge would apply to the following classes of vessels for which payments were made late:
(1)vessels listed as active or inactive at the beginning of the calendar year; and
(2)vessels not listed at the beginning of the calendar year, but listed in the previous year, and for which active status was requested to replace a vessel removed from active status during the year. Tuna Purse Seine Vessels With Dolphin Mortality Limits Dolphin Mortality Limits
(DMLs)are defined as “the maximum allowable number of incidental dolphin mortalities per calendar year assigned to a vessel” (50 CFR 216.3). Tuna purse seine vessels with DMLs are subject to additional requirements, including gear specifications and annual inspections. In 2004, the IDCP adopted resolutions to amend gear and inspection requirements for vessels with DMLs. To implement these requirements, this proposed rule would revise the regulations to comply with the resolutions adopted by the IDCP in 2004. Floodlight specifications at 50 CFR 216.24(c)(3)(viii) would be revised to require vessels with DMLs to be equipped with long-range, high-intensity floodlights with a sodium or multivapour lamp, to provide sufficient light to observe dolphin release procedures and to monitor incidental dolphin mortality. 50 CFR 216.24(c)(4)(i) would also be revised to increase the frequency of vessel inspections from once to twice per year, to monitor compliance with gear and equipment requirements associated with DMLs. Vessel inspections would be conducted by IATTC representatives or NMFS staff. Fisheries Certificates of Origin and Associated Certifications To import tuna, tuna products, and certain other fish products into the United States, Fisheries Certificates of Origin
(FCOs)and associated certifications must be filed with both U.S. Customs and Border Protection (CBP; Department of Homeland Security) and NMFS Southwest Region. Current regulations at 50 CFR 216.24(f)(3)(ii) require FCOs and associated certifications to be submitted to NMFS within 30 days of the shipment's entry into the commerce of the United States. However, allowing 30 days to submit the required certifications may hinder enforcement, because the products will likely be offered for sale or purchased or consumed before violations of the regulations governing certification are determined. This rule would revise 50 CFR 216.24(f)(3)(ii) to require that FCOs and associated certifications be submitted to NMFS within 10 calendar days of the shipment's entry into the commerce of the United States, to aid in enforcement of the regulations. Section 50 CFR 216.24(f)(3) continues to require that FCOs covering tuna processed in the United States be submitted only after endorsement by the final processor or exporter. FCOs and associated certifications may be submitted to NMFS using a secure file transfer protocol
(FTP)site or via mail either on compact disc or as hard copies. The current regulations allow electronic submissions to be in PDF or as an image file embedded in a Microsoft Word, Microsoft PowerPoint, or Corel WordPerfect file. However, because NMFS may not be able to view image files embedded in certain versions of Word, PowerPoint, or WordPerfect, and because PDF is universal and readily available, 50 CFR 216.24(f)(3) would be revised to require all electronic submissions to NMFS of FCOs and associated certifications to be in PDF. In 50 CFR 216.24(f)(2), the list of Harmonized Tariff Schedule of the United States
(HTS)numbers and descriptions of products would be updated based on the most recent HTS. 50 CFR 216.24(f)(4)(xiii) and 50 CFR 216.24(f)(6)(ii) both describe the circumstances under which the High Seas Driftnet Certification contained on the FCO must be completed and by whom. 50 CFR 216.24(f)(4)(xiii) requires a responsible government official of the harvesting nation to sign and date the High Seas Driftnet Certification for any shipments containing fish or fish products “harvested by” vessels of a nation known to use large-scale driftnets (a “large-scale driftnet nation”), to certify the fish or fish products were not harvested using large-scale driftnets. In contrast, 50 CFR 216.24(f)(6)(ii) requires a responsible government official of the large-scale driftnet nation to sign and date the High Seas Driftnet Certification for any shipments containing fish or fish products “exported from or harvested on the high seas by” the large-scale driftnet nation. To address these differences, 50 CFR 216.24(f)(4)(xiii) would be revised to be consistent with the language in 50 CFR 216.24(f)(6)(ii). In addition, the instructions on the FCO require a responsible government official of the harvesting nation to sign and date the High Seas Driftnet Certification for any shipments containing fish or fish products “exported from or harvested by” a large-scale driftnet nation. In an action outside of this rulemaking under the PRA, the FCO instructions would be revised to require a responsible government official of the large-scale driftnet nation to sign and date the High Seas Driftnet Certification consistent with 50 CFR 216.24(f)(6)(ii). Dolphin-Safe Certifications and Tuna Tracking Forms 50 CFR 216.24(f)(3) states that documents (e.g., FCOs, certifications, written statements, etc.) covering tuna or tuna products to be imported into the United States or labeled as “dolphin-safe” are to be filed with CBP at the time of import and then “accompany” the tuna or tuna products by being submitted to the Tuna Tracking and Verification Program, Southwest Region. This proposed rule would add a reference to 50 CFR 216.24(f)(3) wherever the term “accompany” is used in 50 CFR sections 216.91, 216.92, and 216.93, to clarify what is meant by the term “accompany.” In addition, as is currently required, the documents must be endorsed at each change in ownership, submitted by the last endorser to the Administrator, Southwest Region, retained in records by importers and exporters for 2 years, and made available within 30 days of a request by the Secretary of Commerce or the Administrator, Southwest Region. Tuna tracking forms
(TTFs)are completed by observers on ETP tuna purse seine vessels greater than 400 st (362.8 mt) carrying capacity, to record every set made during a trip. The handling of TTFs and the tracking and verification of dolphin-safe and non-dolphin-safe tuna caught in the Convention Area are regulated by the international tuna tracking and verification program adopted by the Parties to the AIDCP. This proposed rule would revise 50 CFR 216.93(c)(5), which describes certain parts of the IDCP tuna tracking and verification program, by removing paragraphs (c)(5)(i) through (c)(5)(v) and adding a general statement that the handling of TTFs and the tracking and verification of tuna caught by a U.S. tuna purse seine vessel in the Convention Area will be conducted consistent with the international tuna tracking and verification program adopted by the Parties to the AIDCP. This revision would help avoid confusion and clarify that the procedures for handling TTFs and for tracking and verifying tuna caught in the Convention Area are not regulated by NMFS. Public Comments Solicited NMFS is soliciting public comments on this proposed rule. Written comments may be submitted to Susan Wang (see ADDRESSES and DATES ). Classification Executive Order 12866 This proposed rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared a Regulatory Impact Review on the proposed regulations, available at: *http://www.regulations.gov.* Regulatory Flexibility Act The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration
(SBA)that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The basis for this certification is presented in the following paragraphs. Description of Affected Entities and Small Entities The proposed regulations would apply to four classes of entities:
(1)Owners of U.S. tuna purse seine vessels fishing in the Convention Area;
(2)owners of U.S. commercial fishing vessels and CPFVs authorized to fish for tuna and tuna-like species in the Convention Area;
(3)vessel operators applying for ETP tuna purse seine operator permits; and
(4)importers of tuna, tuna products, and certain other fish products. We used the SBA's size standards established at 13 CFR 121.201 to define small entities. Fishing vessels with less than $4 million in average annual receipts, vessel operators with an average annual income of less than $4 million, and importers with less than 100 employees would be considered small entities. U.S. tuna purse seine vessels fishing in the Convention Area are divided into two size groups:
(1)Vessels greater than 400 st (362.8 mt) carrying capacity (“large” vessels); and
(2)vessels of 400 st (362.8 mt) carrying capacity or less (“small” vessels). Large vessels typically exceed $4 million in annual receipts, whereas small vessels have less than $4 million in annual receipts and would be considered small entities. Large vessels must be categorized as active on the Vessel Register in order to fish for tuna in the Convention Area. Small vessels are not required to be listed on the Vessel Register unless landings of tuna caught in the Convention Area comprise more than 50 percent of the vessel's total landings, by weight, for a given calendar year. From 2004 to 2006, the active U.S. tuna purse seine fleet operating in the ETP averaged less than 5 large vessels and from 1-2 small vessels per year. In 2007, the active U.S. fleet consisted of three large vessels and one small vessel, and the inactive list consisted of one small vessel. Ten or fewer small purse seine vessels fish most of the year for coastal pelagic species, but opportunistically fish for tuna in the ETP when tuna are seasonably available. About 2,100 U.S. commercial fishing vessels and CPFVs are authorized to fish for tuna and tuna-like species in the Convention Area per year, including:
(1)vessels under Pacific HMS vessel permits (about 1,988 vessels); and
(2)vessels based in Hawaii and the U.S. Pacific Islands, under HSFCA permits (about 164 vessels). All of these vessels would be considered small entities with less than $4 million in annual receipts. Vessel operators are in charge of and control fishing operations on U.S. purse seine vessels fishing for tuna and tuna-like species in the Convention Area and must possess a valid ETP operator permit. About 25 vessel operators apply for the ETP operator permit each year and all would be considered small entities with an annual income of less than $4 million. There are an estimated 475 distinct U.S. importers of tuna, tuna products, and certain other fish products per year. Of these, about 350 importers would be considered small businesses with less than 100 employees. Impacts on Owners of Small Tuna Purse Seine Vessels, Commercial Fishing Vessels, and CPFVs The proposed rule would apply additional requirements to tuna purse seine vessels in the ETP, none of which would result in a significant economic effect. First, payment of the vessel assessment fee is the only mechanism under the current regulations for vessel owners to request active or inactive status for a small tuna purse seine vessel. This rule would:
(1)update the regulations to be consistent with resolutions under the AIDCP and require owners of small tuna purse seine vessels to pay the vessel assessment fee only if active status is requested for the vessel and the vessel is required to carry an observer; and
(2)require an annual written notification to request active or inactive status for a small tuna purse seine vessel. Submission of written notification would:
(1)ensure collection of the required information for the Vessel Register; and
(2)provide a method to request active or inactive status, particularly for vessel owners no longer required to pay the vessel assessment fee. Written notification to request active status would require submission by fax to NMFS of the vessel owner or managing owner's signature and business telephone and fax numbers, as well as the required Vessel Register information as described in the preamble. Written notification to request inactive status would require submission by mail to NMFS of the vessel name and registration number and the owner or managing owner's name, signature, and business contact information. The time needed to gather and submit this information would be minimal (about 35 minutes for a request for active status and 5 minutes for a request for inactive status). Vessel owners already provide much of this information to NMFS on a voluntary basis. Additional costs for a request for active status would consist of $0.30 for a photograph and $3.00 for faxing. Additional costs for a request for inactive status would consist of $0.10 for a copy of the written notification, $0.10 for an envelope, and $0.42 for postage. Vessel Register information would also be collected for vessels authorized to fish for tuna and tuna-like species in the Convention Area under an ETP tuna purse seine vessel permit, a Pacific HMS vessel permit, or an HSFCA permit. This proposed rule would revise the ETP vessel permit application to collect a vessel photograph. However, owners of small purse seine vessels would not be affected, because they are not required to obtain an ETP vessel permit. Revisions to the Pacific HMS vessel permit application and HSFCA permit application to collect the required additional information would affect vessels under these permits. However, these revisions are planned as actions separate from this proposed rule and are not considered in this analysis. Current regulations state that a request for active status will be considered frivolous if a purse seine vessel was listed as active but less than 20 percent of the vessel's total landings, by weight, in that same year was comprised of tuna harvested by purse seine in the Convention Area. This proposed rule would add additional criteria to allow a request for active status to be considered frivolous if a purse seine vessel was listed as active but did not fish for tuna at all in the Convention Area in that same year. The additional criteria would reinforce the current regulations and would not result in additional costs. The proposed rule would require owners of tuna purse seine vessels listed on the Vessel Register to submit written notification to NMFS at least 10 business days prior to submitting an application to transfer the vessel to foreign registry and flag. Written notification would include the vessel name and registration number, the vessel owner or managing owner's name and signature, and the expected date of submission of the application. Vessels requiring approval by MARAD prior to transfer would not be subject to the written notification requirement, because MARAD already provides such notification to NMFS under an MOU. No such agreement exists with the USCG at this time. This written notification would ensure NMFS is notified prior to transfer of the vessel to foreign registry and flag. The time needed to prepare and submit this written notification would be minimal (about 5 minutes). Additional costs would include $0.10 for a copy of the written notification, $0.10 for an envelope, and $0.42 for postage. Regulations at 50 CFR part 300 provide criteria under which a vessel may be removed from the Vessel Register. The proposed regulations would add additional criteria to aid in managing and updating the U.S. portion of the Vessel Register. First, additional criteria would be added to allow removal of a vessel from the Vessel Register if the vessel lacks valid state registration or documentation with the USCG. Vessels lacking valid state registration or USCG documentation are not authorized to fish in navigable waters of the United States or in the U.S. exclusive economic zone, and therefore are not authorized by the United States to fish for tuna and tuna-like species in the Convention Area. Removal of such vessels is necessary to update and maintain the Vessel Register and would not result in additional costs. Second, additional criteria would be added to allow removal of a tuna purse seine vessel from the Vessel Register if the owner of the vessel has made a frivolous request for active status. Removal of the vessel may be necessary to make room on the Vessel Register for other U.S. purse seine vessels. Small vessels would experience little to no economic impacts. Although the vessel would no longer be listed on the Vessel Register, current regulations allow a small vessel to continue fishing for tuna as long as landings of tuna caught in the Convention Area comprise 50 percent or less of the vessel's total landings in that calendar year. All small vessels removed from the Vessel Register due to a frivolous request would still be allowed to fish for tuna in the Convention Area, given the definition of a frivolous request. Vessels removed from the Vessel Register due to a frivolous request may be added back to the Vessel Register if the owner submits a request for active or inactive status; however, the request would be considered last among all requests for that year. Third, additional criteria would be added to allow removal of a tuna purse seine vessel from the Vessel Register upon receipt of written notification from the owner or managing owner of the intent to transfer the vessel to foreign registry and flag. The additional criteria would reinforce current regulations, which allow NMFS to remove a vessel from the Vessel Register prior to transfer, but only if MARAD or the USCG notifies NMFS that the owner has submitted an application for transfer. Removal of a tuna purse seine vessel from the Vessel Register prior to transfer is necessary to protect the U.S. tuna purse seine fleet's capacity limit. A U.S. tuna purse seine vessel listed as active on the Vessel Register holds a certain portion of the U.S. fleet's capacity limit of 8,969 mt. The capacity held by the vessel could be transferred with the vessel upon transfer to foreign registry and flag. Removing the vessel from the Vessel Register prior to transfer would prevent reductions in the U.S. fleet's capacity limit, because the vessel would no longer hold a portion of the U.S. fleet's capacity. However, the vessel's market value would likely decrease. Although this may result in a potentially significant economic impact, this impact would be attributed to the current regulations that already allow removal of vessels from the Vessel Register prior to transfer. Owners of small purse seine vessels would not be subject to revised floodlight and vessel inspection requirements for purse seine vessels possessing DMLs. Owners of small purse seine vessels are not allowed to obtain DMLs. Impacts on Vessel Operators The proposed rule would add an ETP operator permit application fee of $35 to $40 to cover administrative costs for processing and issuing ETP operator permits. An application processing fee of $35 to $40 would not be a significant proportion of the annual income of an ETP vessel operator, who earns approximately $40,000 to more than $100,000 per fishing trip. Impacts on Importers The requirement that electronic submissions of FCOs and associated certifications be in PDF would affect importers of tuna, tuna products, and certain other fish products requiring FCOs. Limiting the acceptable file format types to PDF would ensure that files are readable. This action would not significantly affect the ability of importers to submit FCOs and associated certifications. Importers would continue to have the option of submitting FCOs and associated certifications by mail. Submission by mail is the method currently used by almost all of the 475 importers and this would not be expected to change. Since the start of this program, only two out of the 475 importers per year have used the electronic option to submit their forms to NMFS, and both already submit the forms in PDF. No additional costs would be expected to result from this requirement. Importers would also be affected by the requirement that FCOs and associated certifications be submitted to NMFS within 10 calendar days of the shipment's entry into the commerce of the United States, rather than within 30 days (except when the tuna will be processed in the United States, in which case the form must be submitted after endorsement by the final processor or exporter). Reducing the time period within which the forms must be submitted to NMFS would aid in enforcement. NMFS would be able to detect and respond to problems with the FCOs or certifications before the products are placed in stores for sale, or purchased and consumed. Most importers would have no additional costs, because they already submit their forms within 10 days of the shipment's entry into U.S. commerce. About 20 of the 350 importers that would be considered small businesses currently submit their forms monthly and would need to submit the FCOs and associated certifications more frequently (e.g., 2-3 times per month rather than monthly). Aside from the extra time required, added out-of-pocket expenses would be small (i.e., $0.10 for each additional envelope and $0.42 for postage for each additional mailing). Summary The proposed rule would affect small entities, but would not have a significant economic effect on any of these small entities. In some cases, the new or revised requirements would apply to a substantial number of small entities, but would not result in significant economic effects. In addition, the proposed rule would not create a disproportionate effect on small entities or significantly reduce profit for small entities. Therefore, an initial regulatory flexibility analysis is not required and none has been prepared. Paperwork Reduction Act This proposed rule contains new and revised collection-of-information requirements subject to review and approval by OMB under the PRA for collections under control number 0648-0387. The following collection-of-information requirements have been submitted to OMB for approval:
(1)Collection of a vessel photograph as part of the ETP tuna purse seine vessel permit application;
(2)annual written notification to request a tuna purse seine vessel of 400 st (362.8 mt) carrying capacity or less be categorized as active on the Vessel Register, including the owner or managing owner's signature and business telephone and fax numbers and the required Vessel Register information (i.e., the vessel name, registration number, and previous name(s) and flag(s); a vessel photograph with the vessel registration number legible; the name and business address of the owner(s) and managing owner(s); port of registry; International Radio Call Sign; where and when built; length, beam, and moulded depth; gross tonnage, fish hold capacity, and carrying capacity; engine horsepower; and type of fishing method(s));
(3)annual written notification to request that a tuna purse seine vessel of 400 st (362.8 mt) carrying capacity or less be categorized as inactive on the Vessel Register, including the vessel name, registration number, and vessel owner or managing owner's name, signature, business address, and business telephone and fax numbers; and
(4)written notification prior to submitting an application to transfer a purse seine vessel listed on the Vessel Register to foreign registry and flag, including the vessel name and registration number, the estimated submission date of the application, and the vessel owner or managing owner's name and signature. Public reporting burdens per individual response for the new and revised collection-of-information requirements are estimated to average 35 minutes for the ETP tuna purse seine vessel permit application; 35 minutes for the written notification to request active status; 5 minutes for the written notification to request inactive status; and 5 minutes for the written notification of the intent to transfer a vessel to foreign registry and flag. These reporting burden estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. This proposed rule also contains a non-substantive change subject to review and approval by OMB under the PRA for collections under control number 0648-0335. A non-substantive change request has been submitted to OMB for approval to require that the CBP importer of record submit a copy of the FCO and associated certifications to NMFS within 10 days of a shipment's entry into U.S. commerce, rather than within 30 days (except when the tuna will be processed in the United States, in which case the forms must be submitted to NMFS after endorsement by the final processor or exporter). The public reporting burden for the revised collection of information requirement would remain the same (estimated to average 20 minutes per individual response), including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to Susan Wang, NMFS, and to David Rostker, OMB (see ADDRESSES above). Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. Endangered Species Act NMFS prepared a Biological Opinion for an interim final rule (65 FR 30, January 3, 2000) to implement the IDCP in December 1999, and in July 2004 issued an amended Incidental Take Statement after taking into account the revisions made in the final rule (69 FR 55288, September 13, 2004). In the 1999 Biological Opinion, NMFS concluded that fishing activities conducted under the interim final rule are not likely to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS or result in the destruction or adverse modification of critical habitat. This proposed rule would not result in any effects beyond those considered in the 1999 Biological Opinion and 2004 Incidental Take Statement. National Environmental Policy Act NMFS prepared an Environmental Assessment
(EA)for a final rule (70 FR 19004, April 12, 2005) to implement resolutions adopted by the IATTC and the IDCP. The Assistant Administrator for Fisheries concluded that fishing activities conducted under the final rule would not be expected to result in significant effects on the human environment. This proposed rule would not be expected to result in modifications to fisheries operations or effects on the human environment beyond those considered under the alternatives in the EA. This action has been categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement. A memo to the record has been prepared memorializing this decision that is available at the Federal E-rulemaking Web site: *http://www.regulations.gov* . Marine Mammal Protection Act Incidental take of dolphins and other marine mammals may occur during fishing operations by U.S. tuna purse seine vessels in the ETP. The take of dolphins incidental to the operation of the U.S. ETP tuna purse seine fishery is authorized and managed under the IDCP. This proposed rule would not affect the administration of that program, which is implemented under the MMPA. List of Subjects 50 CFR Part 216 Fish, Marine mammals, Reporting and recordkeeping requirements. 50 CFR Part 300 International fisheries regulations, Pacific tuna fisheries. Dated: July 7, 2008. Samuel D. Rauch III, Deputy Assistant Administrator, for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, NMFS proposes to amend 50 CFR parts 216 and 300 as follows: PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 216 continues to read as follows: Authority: 16 U.S.C. 1361 *et seq.* , unless otherwise noted. 2. In § 216.3, add definitions for “Albacore tuna”, “Bigeye tuna”, “Bluefin tuna”, “Longtail tuna”, “Skipjack tuna”, “Southern bluefin tuna”, “Tuna”, and “Yellowfin tuna” in alphabetical order and revise the definition for “Tuna product” to read as follows: § 216.3 Definitions. *Albacore tuna* means the species *Thunnus alalunga* . *Bigeye tuna* means the species *Thunnus obesus* . *Bluefin tuna* means the species *Thunnus thynnus* . *Longtail tuna* means the species *Thunnus tonngol* . *Skipjack tuna* means the species *Euthynnus (Katsuwonus) pelamis* . *Southern bluefin tuna* means the species *Thunnus maccoyii* . *Tuna* means any fish of the genus Thunnus and the species *Euthynnus (Katsuwonus) pelamis* . *Tuna product* means any food product processed for retail sale and intended for human consumption that contains an item listed in § 216.24(f)(2)(i) or (ii), but does not include perishable items with a shelf life of less than 3 days. *Yellowfin tuna* means the species *Thunnus albacares* (synonomy: *Neothunnus macropterus* ). 3. In § 216.24, redesignate paragraph (f)(8)(i)(D)( *3* )( *iii* ) as paragraph (f)(8)(ii) and redesignate paragraphs (f)(8)(iv), (f)(8)(v), and (f)(8)(vi) as paragraphs (f)(8)(iii), (f)(8)(iv), and (f)(8)(v); and revise paragraphs (a)(3), (b)(4), (b)(5), (b)(6)(ii), (b)(6)(iii), (c)(3)(viii), (c)(4)(i), (f)(2), (f)(3), (f)(4), (f)(10), and (f)(11), to read as follows:. § 216.24 Taking and related acts incidental to commercial fishing operations by tuna purse seine vessels in the eastern tropical Pacific Ocean.
(a)* * *
(3)Upon written request made in advance of entering the ETP, the limitations in paragraphs (a)(2)(ii) and (e)(1) of this section may be waived by the Administrator, Southwest Region, for the purpose of allowing transit through the ETP. The waiver will provide, in writing, the terms and conditions under which the vessel must operate, including a requirement to report to the Administrator, Southwest Region, the vessel's date of exit from or subsequent entry into the permit area.
(b)* * *
(4)*Application for vessel permit.* ETP tuna purse seine vessel permit application forms and instructions for their completion are available from NMFS. To apply for an ETP vessel permit, a vessel owner or managing owner must complete, sign, and submit the appropriate form via fax to
(562)980-4047, for prioritization purposes as described under § 300.22(b)(4)(i)(D)( *3* ) of this title, allowing at least 15 days for processing. To request that a vessel in excess of 400 st (362.8 mt) carrying capacity be categorized as active on the Vessel Register under § 300.22(b)(4)(i) of this title in the following calendar year, the owner or managing owner must submit the vessel permit application via fax, payment of the vessel permit application fee, and payment of the vessel assessment fee no later than September 15 for vessels for which a DML is requested for the following year, and no later than November 30 for vessels for which a DML is not requested for the following year.
(5)*Application for operator permit* . An applicant for an operator permit must complete, sign, and submit the appropriate form obtained from NMFS and submit payment of the permit application fee to the Administrator, Southwest Region, allowing at least 45 days for processing. Application forms and instructions for their completion are available from NMFS.
(6)* * *
(ii)*Operator permit fee* . The Assistant Administrator may require a fee to be submitted with an application for an operator permit. The level of such a fee shall be determined in accordance with the NOAA Finance Handbook and specified by the Administrator, Southwest Region, on the application form.
(iii)*Vessel assessment fee* . The vessel assessment fee supports the placement of observers on individual tuna purse seine vessels, and maintenance of the observer program, as established by the IATTC or other approved observer program.
(A)The owner or managing owner of a purse seine vessel for which a DML has been requested must submit the vessel assessment fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, no later than September 15 of the year prior to the calendar year for which the DML is requested. Payment of the vessel assessment fee must be consistent with the fee for active status on the Vessel Register under § 300.22(b)(4) of this title.
(B)The owner or managing owner of a purse seine vessel for which active or inactive status on the Vessel Register, as defined in § 300.21 of this title, has been requested, but for which a DML has not been requested, must submit payment of the vessel assessment fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, no later than November 30 of the year prior to the calendar year in which the vessel will be listed on the Vessel Register. Payment of the vessel assessment fee is required only if the vessel is listed as active and is required to carry an observer, or if the vessel is listed as inactive and exceeds 400 st (362.8 mt) in carrying capacity. Payment of the vessel assessment fee must be consistent with the vessel's status, either active or inactive, on the Vessel Register in § 300.22(b)(4) of this title.
(C)The owner or managing owner of a purse seine vessel that is licensed under the South Pacific Tuna Treaty must submit the vessel assessment fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, prior to obtaining an observer and entering the ETP to fish. Consistent with § 300.22(b)(1)(i) of this title, this class of purse seine vessels is not required to be listed on the Vessel Register under § 300.22(b)(4) of this title in order to purse seine for tuna in the ETP during a single fishing trip per calendar year of 90 days or less. Payment of the vessel assessment fee must be consistent with the fee for active status on the Vessel Register under § 300.22(b)(4) of this title.
(D)The owner or managing owner of a purse seine vessel listed as inactive on the Vessel Register at the beginning of the calendar year and who requests to replace a vessel removed from active status on the Vessel Register under § 300.22(b)(4) of this title during the year, must pay the vessel assessment fee associated with active status, less the vessel assessment fee associated with inactive status that was already paid, before NMFS will request the IATTC Secretariat change the status of the vessel from inactive to active. Payment of the vessel assessment fee is required only if the vessel is required to carry an observer.
(E)The owner or managing owner of a purse seine vessel not listed on the Vessel Register at the beginning of the calendar year and who requests to replace a vessel removed from active status on the Vessel Register under § 300.22(b)(4) of this title during the year, must pay the vessel assessment fee associated with active status only if the vessel is required to carry an observer, before NMFS will request the IATTC Secretariat change the status of the vessel to active.
(F)Payments will be subject to a 10 percent surcharge if received under paragraph (b)(6)(iii)(D) of this section; under paragraph (b)(6)(iii)(E) of this section for vessels that were listed on the Vessel Register in the calendar year prior to the year for which active status was requested; or after the dates specified in paragraphs (b)(6)(iii)(A) or (b)(6)(iii)(B) of this section. Payments will not be subject to a 10 percent surcharge if received under paragraph (b)(6)(iii)(C) of this section, or if received under paragraph (b)(6)(iii)(E) of this section for vessels that were not listed on the Vessel Register in the calendar year prior to the year for which active status was requested. The Administrator, Southwest Region, will forward all vessel assessment fees described in this section to the IATTC or to the applicable organization approved by the Administrator, Southwest Region.
(c)* * *
(3)* * *
(viii)*Lights* . The vessel must be equipped with long-range, high-intensity floodlights with a sodium lamp of at least 1000 watts, or a multivapour lamp of at least 1500 watts, for use in darkness to ensure sufficient light to observe that procedures for dolphin release are carried out and to monitor incidental dolphin mortality.
(4)*Vessel inspection* —(i) *Twice per year.* At least twice during each calendar year, purse seine nets and other gear and equipment required under § 216.24(c)(3) must be made available for inspection and for a trial set/net alignment by an authorized NMFS inspector or IATTC staff as specified by the Administrator, Southwest Region, in order to obtain a vessel permit. The first such inspection shall be carried out before the vessel's request for a DML is submitted to the IATTC. The second such inspection shall be carried out before notification of any reallocation of DMLs for vessels with full-year DMLs or during the last quarter of the year for vessels with second-semester DMLs.
(f)* * *
(2)*Imports requiring a Fisheries Certificate of Origin.* Shipments of tuna, tuna products, and certain other fish products identified in paragraphs (f)(2)(i), (f)(2)(ii), and (f)(2)(iii) of this section may not be imported into the United States unless a properly completed Fisheries Certificate of Origin (FCO), NOAA Form 370, is filed with U.S. Customs and Border Protection
(CBP)at the time of importation.
(i)*Imports requiring a Fisheries Certificate of Origin, subject to yellowfin tuna embargo.* All shipments containing yellowfin tuna or yellowfin tuna products (other than fresh tuna) imported into the United States must be accompanied by an FCO, including, but not limited to, those imported under the following Harmonized Tariff Schedule of the United States
(HTS)numbers. Updated HTS numbers can be identified by referencing the most current HTS in effect at the time of importation, available at *http://www.usitc.gov.* The scope of yellowfin tuna embargoes and procedures for attaining an affirmative finding are described under paragraphs (f)(6) and (f)(8) of this section, respectively.
(A)*Frozen:* (products containing Yellowfin). 0303.42.0020 Yellowfin tunas, whole, frozen 0303.42.0040 Yellowfin tunas, head-on, frozen, except whole 0303.42.0060 Yellowfin tunas frozen, except whole, head-on, fillets, livers and roes 0304.29.6097 Tuna fish fillets, frozen, Not elsewhere specified or indicated (NESOI) 0304.99.1090 Tuna, frozen, in bulk or in immediate containers weighing with their contents over 6.8 kg each, NESOI
(B)*Airtight Containers:* (products containing Yellowfin). 1604.14.1010 Tunas and skipjack, in oil, in airtight containers, in foil or other flexible containers weighing with their contents not more than 6.8 kg each 1604.14.1099 Tunas and skipjack, in oil, in airtight containers, NESOI 1604.14.2291 Other tunas and skipjack, no oil, in foil/flexible airtight containers, not over 6.8 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.2299 Tunas, NESOI and skipjack, not in oil, in other airtight containers not over 7 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.3091 Tunas and skipjack, NESOI, not in oil, in foil or other flexible airtight containers, weighing with their contents not more than 6.8 kg each 1604.14.3099 Other tunas and skipjack, not in oil, in airtight containers, NESOI
(C)*Loins:* (products containing Yellowfin). 1604.14.4000 Tunas and skipjacks, prepared or preserved, not in airtight containers, not in oil, in bulk or immediate containers with their contents over 6.8 kg each 1604.14.5000 Tunas and skipjack, prepared or preserved, not in airtight containers, NESOI
(D)*Other:* (products containing Yellowfin). 1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate containers weighing with their contents not over 6.8 kg each 1604.20.3000 Fish balls, cakes and puddings, NESOI
(ii)*Imports requiring a Fisheries Certificate of Origin, not subject to yellowfin tuna embargo.* All shipments containing tuna or tuna products (other than fresh tuna or yellowfin tuna identified in paragraph (f)(2)(i) of this section) imported into the United States must be accompanied by an FCO, including, but not limited to, those imported under the following HTS numbers. Updated HTS numbers can be identified by referencing the most current HTS in effect at the time of importation, available at *http://www.usitc.gov.*
(A)*Frozen:* (other than Yellowfin). 0303.41.0000 Albacore or longfinned tunas, frozen, except fillets, livers and roes 0303.43.0000 Skipjack tunas or stripe-bellied bonito, frozen, except fillets, livers and roes 0303.44.0000 Bigeye tunas, frozen, except fillets, livers and roes 0303.45.0000 Bluefin tunas, frozen, except fillets, livers and roes 0303.46.0000 Southern bluefin tunas, frozen, except fillets, livers and roes 0303.49.0100 Tunas, frozen, except fillets, livers and roes, NESOI 0304.29.6097 Tuna fish fillets, frozen, NESOI 0304.99.1090 Tuna, frozen, in bulk or in immediate containers weighing with their contents over 6.8 kg each, NESOI
(B)*Airtight Containers:* (other than Yellowfin). 1604.14.1010 Tunas and skipjack, in oil, in airtight containers, in foil or other flexible containers weighing with their contents not more than 6.8 kg each 1604.14.1091 Tunas, albacore, in oil, in airtight containers, NESOI 1604.14.1099 Tunas and skipjack, in oil, in airtight containers, NESOI 1604.14.2251 Albacore tuna, not in oil, in foil/flexible airtight containers, weighing not over 6.8 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.2259 Albacore tuna, not in oil, in airtight containers weighing not over 7 kg, NESOI, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.2291 Other tunas and skipjack, no oil, in foil/flexible airtight containers, not over 6.8 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.2299 Tunas, NESOI and skipjack, not in oil, in other airtight containers, not over 7 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.3051 Tuna, albacore not in oil, in foil or other flexible airtight containers, weighing with contents not more than 6.8 kg each, NESOI 1604.14.3059 Tuna, albacore not in oil, in airtight containers, NESOI 1604.14.3091 Tunas and skipjack, NESOI, not in oil, in foil or other flexible airtight containers, weighing with their contents not more than 6.8 kg each 1604.14.3099 Other tunas and skipjack, not in oil, in airtight containers, NESOI
(C)*Loins:* (other than Yellowfin). 1604.14.4000 Tunas and skipjacks, prepared or preserved, not in airtight containers, not in oil, in bulk or immediate containers with their contents over 6.8 kg each 1604.14.5000 Tunas and skipjack, prepared or preserved, not in airtight containers, NESOI
(D)*Other:* (only if the product contains tuna). 1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate containers weighing with their contents not over 6.8 kg each 1604.20.3000 Fish balls, cakes and puddings, NESOI
(iii)*Exports from driftnet nations only, requiring a Fisheries Certificate of Origin and official certification.* The following HTS numbers identify categories of fish and shellfish, in addition to those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this section, known to have been harvested using a large-scale driftnet and imported into the United States. Shipments exported from a large-scale driftnet nation, as identified under paragraph (f)(7) of this section, and imported into the United States, including but not limited to those imported into the United States under any of the HTS numbers listed in paragraph (f)(2) of this section, must be accompanied by an FCO and the official statement described in paragraph (f)(4)(xiii) of this section.
(A)*Frozen:* 0303.19.0012 Chinook
(King)salmon ( *Oncorhynchus tschawytscha* ), frozen, except fillets, livers and roes 0303.19.0022 Chum
(dog)salmon ( *Oncorhynchus keta* ), frozen, except fillets, livers and roes 0303.19.0032 Pink (humpie) salmon ( *Oncorhynchus gorbuscha* ), frozen, except fillets, livers and roes 0303.19.0052 Coho (silver) salmon ( *Oncorhynchus kisutch* ), frozen, except fillets, livers and roes 0303.19.0062 Pacific salmon ( *Oncorhynchus masou, Oncorhynchus rhodurus* ), frozen, except fillets, livers and roes, NESOI 0303.21.0000 Trout ( *Salmo trutta; Oncorhynchus mykiss, clarki, aguabonita, gilae, apache,* and *chrysogaster* ), frozen, except fillets, livers and roes 0303.22.0000 Atlantic salmon ( *Salmo salar* ) and Danube salmon ( *Hucho hucho* ), frozen, except fillets, livers and roes 0303.29.0000 Salmonidae, frozen, except fillets, livers and roes, NESOI 0303.61.0010 Swordfish steaks, frozen, except fillets 0303.61.0090 Swordfish, frozen, except steaks, fillets, livers and roes 0303.75.0010 Dogfish ( *Squalus* spp.), frozen, except fillets, livers and roes 0303.75.0090 Sharks, frozen, except dogfish, fillets, livers and roes 0303.79.0079 Fish, frozen, except fillets, livers and roes, NESOI 0304.21.0000 Swordfish fillets, frozen, NESOI 0304.29.2066 Fish fillets, skinned, frozen blocks weighing over 4.5 kg each, to be minced, ground or cut into pieces of uniform weights and dimensions, NESOI 0304.29.6006 Atlantic Salmonidae ( *Salmo salar* ) fillets, frozen, NESOI 0304.29.6008 Salmonidae fillets, frozen, except Atlantic salmon, NESOI 0304.29.6099 Fish fillets, frozen, NESOI 0307.49.0010 Squid fillets, frozen
(B)*Canned:* 1604.11.2020 Pink (humpie) salmon, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.2030 Sockeye
(red)salmon, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.2090 Salmon NESOI, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.4010 Chum
(dog)salmon, not in oil, canned 1604.11.4020 Pink (humpie) salmon, not in oil, canned 1604.11.4030 Sockeye
(red)salmon, not in oil, canned 1604.11.4040 Salmon, NESOI, not in oil, canned 1604.11.4050 Salmon, whole or in pieces, but not minced, NESOI 1604.19.2000 Fish, NESOI, not in oil, in airtight containers 1604.19.3000 Fish, NESOI, in oil, in airtight containers 1605.90.6050 Loligo squid, prepared or preserved 1605.90.6055 Squid except Loligo, prepared or preserved
(C)*Other:* 0305.30.6080 Fish fillets, dried, salted or in brine, but not smoked, NESOI 0305.41.000 Pacific salmon ( *Oncorhynchus* spp.), Atlantic salmon ( *Salmo salar* ), and Danube salmon ( *Hucho hucho* ), including fillets, smoked 0305.49.4040 Fish including fillets, smoked, NESOI 0305.59.2000 Shark fins, dried, whether or not salted but not smoked 0305.59.4000 Fish, dried, whether or not salted but not smoked, NESOI 0305.69.4000 Salmon, salted but not dried or smoked; in brine 0305.69.5000 Fish in immediate containers weighing with their contents 6.8 kg or less each, salted but not dried or smoked; in brine, NESOI 0305.69.6000 Fish, salted but not dried or smoked; in brine, NESOI 0307.49.0022 Squid, *Loligo opalescens,* frozen (except fillets), dried, salted or in brine 0307.49.0024 Squid, *Loligo pealei,* frozen (except fillets), dried, salted or in brine 0307.49.0029 Loligo squid, frozen (except fillets), dried, salted or in brine, NESOI 0307.49.0050 Squid, frozen (except fillets), dried, salted or in brine, except Loligo squid 0307.49.0060 Cuttle fish ( *Sepia officinalis, Rossia macrosoma, Sepiola* spp.), frozen, dried, salted or in brine
(3)*Disposition of Fisheries Certificates of Origin.* The FCO described in paragraph (f)(4) of this section may be obtained from the Administrator, Southwest Region, or downloaded from the Internet at *http://swr.nmfs.noaa.gov/noaa370.htm.*
(i)A properly completed FCO and its attached certificates as described in § 216.91(a), if applicable, must accompany the required CBP entry documents that are filed at the time of import.
(ii)FCOs and associated certifications as described in § 216.91(a), if any, that accompany imported shipments of tuna must be submitted by the importer of record to the Tuna Tracking and Verification Program, Southwest Region, within 10 calendar days of the shipment's entry into the commerce of the United States. FCOs submitted via mail should be sent to the Tuna Tracking and Verification Program, Southwest Region, P.O. Box 32469, Long Beach, CA 90832-2469. Copies of the documents may be submitted electronically using a secure file transfer protocol
(FTP)site. Importers of record interested in submitting FCOs and associated certifications via FTP may contact a representative of the Tuna Tracking and Verification Program at the following e-mail address: *SWRTuna.Track@noaa.gov.* The Tuna Tracking and Verification Program will facilitate secure transfer and protection of certifications by assigning a separate electronic folder for each importer. Access to the electronic folder will require a user identification and password. The Tuna Tracking and Verification Program will assign each importer a unique user identification and password. Safeguarding the confidentiality of the user identification and password is the responsibility of the importer to whom they are assigned. Copies of the documents may also be submitted via mail either on compact disc or as hard copies. All electronic submissions, whether via FTP or on compact disc, must be in Portable Document Format (PDF).
(iii)FCOs that accompany imported shipments of tuna destined for further processing in the United States must be endorsed at each change in ownership and submitted to the Administrator, Southwest Region, by the last endorser when all required endorsements are completed.
(iv)Importers and exporters are required to retain their records, including FCOs, import or export documents, invoices, and bills of lading for 2 years, and such records must be made available within 30 days of a request by the Secretary or the Administrator, Southwest Region.
(4)*Contents of Fisheries Certificate of Origin.* An FCO, certified to be accurate by the exporter(s) of the accompanying shipment, must include the following information:
(i)CBP entry identification;
(ii)Date of entry;
(iii)Exporter's full name and complete address;
(iv)Importer's or consignee's full name and complete address;
(v)Species description, product form, and HTS number;
(vi)Total net weight of the shipment in kilograms;
(vii)Ocean area where the fish were harvested (ETP, western Pacific Ocean, south Pacific Ocean, eastern Atlantic Ocean, western Atlantic Ocean, Caribbean Sea, Indian Ocean, or other);
(viii)Type of fishing gear used to harvest the fish (purse seine, longline, baitboat, large-scale driftnet, gillnet, pole and line/hook and line, or other);
(ix)Country under whose laws the harvesting vessel operated based upon the flag of the vessel or, if a certified charter vessel, the country that accepted responsibility for the vessel's fishing operations;
(x)Dates on which the fishing trip began and ended;
(xi)The name of the harvesting vessel;
(xii)Dolphin-safe condition of the shipment, described by checking the appropriate statement on the form and attaching additional certifications as described in § 216.91(a) if required;
(xiii)For shipments containing fish or fish products exported from, or harvested on the high seas by vessels of a nation known to use large-scale driftnets, as determined by the Secretary pursuant to paragraph (f)(7) of this section, the High Seas Driftnet Certification contained on the FCO must be dated and signed by a responsible government official of the large-scale driftnet nation, certifying that the fish or fish products were harvested by a method other than large-scale driftnet; and
(xiv)Each importer, exporter, or processor who takes custody of the shipment must sign and date the form to certify that the form and attached documentation accurately describes the shipment of fish that they accompany.
(10)*Fish refused entry.* If fish is denied entry under paragraph (f)(2) of this section, the Port Director of CBP shall refuse to release the fish for entry into the United States.
(11)*Disposition of fish refused entry into the United States.* Fish that is denied entry under paragraph (f)(2) of this section and that is not exported under CBP supervision within 90 days shall be disposed of under CBP laws and regulations at the importer's expense. Provided, however, that any disposition shall not result in an introduction into the United States of fish caught in violation of the MMPA. 4. In § 216.91, revise paragraphs (a)(2)(i), (a)(2)(ii), and (a)(4) to read as follows: § 216.91 Dolphin-safe labeling standards.
(a)* * *
(2)* * *
(i)In a fishery in which the Assistant Administrator has determined that a regular and significant association occurs between dolphins and tuna (similar to the association between dolphins and tuna in the ETP), unless such products are accompanied as described in § 216.24(f)(3) by a written statement, executed by the Captain of the vessel and an observer participating in a national or international program acceptable to the Assistant Administrator, certifying that no purse seine net was intentionally deployed on or used to encircle dolphins during the particular trip on which the tuna were caught and no dolphins were killed or seriously injured in the sets in which the tuna were caught; or
(ii)In any other fishery unless the products are accompanied as described in § 216.24(f)(3) by a written statement executed by the Captain of the vessel certifying that no purse seine net was intentionally deployed on or used to encircle dolphins during the particular trip on which the tuna was harvested;
(4)*Other fisheries.* By a vessel in a fishery other than one described in paragraphs (a)(1) through (a)(3) of this section that is identified by the Assistant Administrator as having a regular and significant mortality or serious injury of dolphins, unless such product is accompanied as described in § 216.24(f)(3) by a written statement, executed by the Captain of the vessel and an observer participating in a national or international program acceptable to the Assistant Administrator, that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught, provided that the Assistant Administrator determines that such an observer statement is necessary. 5. In § 216.92, revise paragraph (b)(2)(ii) and the introductory text of paragraph (b)(2)(iii) to read as follows: § 216.92 Dolphin-safe requirements for tuna harvested in the ETP by large purse seine vessels.
(b)* * *
(2)* * *
(ii)The tuna or tuna products are accompanied as described in § 216.24(f)(3) by a properly completed FCO; and
(iii)The tuna or tuna products are accompanied as described in § 216.24(f)(3) by valid documentation signed by a representative of the appropriate IDCP member nation, containing the harvesting vessel names and tuna tracking form numbers represented in the shipment, and certifying that: 6. In § 216.93, revise paragraphs (c)(5), (e), and (f)(2) to read as follows: § 216.93 Tracking and verification program.
(c)* * *
(5)The handling of TTFs and the tracking and verification of tuna caught in the Convention Area by a U.S. purse seine vessel greater than 400 st (362.8 mt) carrying capacity shall be conducted consistent with the international tuna tracking and verification program adopted by the Parties to the Agreement on the IDCP.
(e)*Tracking imports.* All tuna products, except fresh tuna, that are imported into the United States must be accompanied as described in § 216.24(f)(3) by a properly certified FCO as required by § 216.24(f)(2). For tuna tracking purposes, copies of FCOs and associated certifications must be submitted by the importer of record to the Administrator, Southwest Region, within 10 calendar days of the shipment's entry into the commerce of the United States as required by § 216.24(f)(3)(ii).
(f)* * *
(2)*Record submission.* Within 10 calendar days of receiving a shipment of tuna or tuna products, any exporter, transshipper, importer, processor, or wholesaler/distributor of tuna or tuna products must submit to the Administrator, Southwest Region, all corresponding FCOs and required certifications for those tuna or tuna products. PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart C—Pacific Tuna Fisheries 7. The authority citation for part 300, subpart C, continues to read as follows: Authority: 16 U.S.C. 951-961 *et seq.* 8. In § 300.21, remove the definition for “Vessel Register” and add definitions for “Commercial passenger fishing vessel”, “Regional Vessel Register”, and “Tuna” in alphabetical order to read as follows: § 300.21 Definitions. *Commercial passenger fishing vessel* means any vessel licensed for commercial passenger fishing purposes within the State out of which it is operating and from which, while under charter or hire, persons are legally permitted to conduct sportfishing activities. *Regional Vessel Register* (hereafter referred to as Vessel Register) means the regional register of vessels authorized to fish for tuna and tuna-like species in the Convention Area, as established by the Inter-American Tropical Tuna Commission in June 2000. *Tuna* means any fish of the genus Thunnus and the species *Euthynnus* ( *Katsuwonus* ) *pelamis* . 9. In § 300.22, revise the section heading and paragraphs (a),
(b)introductory text, and (b)(2), (b)(3), (b)(4), (b)(5)(iv), and (b)(7); and add new paragraphs (b)(5)(vi), (b)(5)(vii), (b)(5)(viii), and (b)(8) to read as follows: § 300.22 Eastern Pacific fisheries—recordkeeping and written reports.
(a)The master or other person in charge of a commercial fishing vessel or commercial passenger fishing vessel
(CPFV)authorized to fish for tuna and tuna-like species in the Convention Area, or a person authorized in writing to serve as the agent for either person, must keep an accurate log of operations conducted from the fishing vessel. For vessels greater than 400 st (362.8 mt) carrying capacity that are authorized to purse seine for tuna in the Convention Area, the log must include for each day the date, noon position (stated in latitude and longitude or in relation to known physical features), and the tonnage of fish on board, by species. The record and bridge log maintained and submitted at the request of the IATTC shall be sufficient to comply with this paragraph, provided the items of information specified by the IATTC are accurately entered in the log. For purse seine vessels of 400 st (362.8 mt) carrying capacity or less and for non-purse seine vessels, maintaining and submitting any logbook required by existing state or federal regulation shall be sufficient to comply with this paragraph.
(b)*Vessel Register.* The Vessel Register shall include, consistent with resolutions of the IATTC, all commercial fishing vessels and CPFVs authorized to fish for tuna and tuna-like species in the Convention Area. Except as provided under paragraph (b)(1) of this section, tuna purse seine vessels must be listed on the Vessel Register and categorized as active under paragraph (b)(4)(i) of this section in order to fish for tuna and tuna-like species in the Convention Area.
(2)*Requirements for inclusion of purse seine vessels on the vessel register.* The tuna purse seine portion of the Vessel Register shall include, consistent with resolutions of the IATTC, only vessels that fished in the Convention Area prior to June 28, 2002. Inclusion on the tuna purse seine portion of the Vessel Register is valid through December 31 of each year. New tuna purse seine vessels may be added to the Vessel Register at any time to replace those previously removed by the Regional Administrator, provided that the total capacity of the replacement vessel or vessels does not exceed that of the tuna purse seine vessel or vessels being replaced.
(3)*Vessel information.* Information on each commercial fishing vessel or CPFV authorized to use purse seine, longline, drift gillnet, harpoon, troll, rod and reel, or pole and line fishing gear to fish for tuna and tuna-like species in the Convention Area for sale shall be collected by the Regional Administrator, Southwest Region, to conform to IATTC resolutions governing the Vessel Register. This information initially includes, but is not limited to, the vessel name and registration number; the name and business address of the owner(s) and managing owner(s); a photograph of the vessel with the registration number legible; previous vessel name(s) and previous flag (if known and if any); port of registry; International Radio Call Sign; vessel length, beam, and moulded depth; gross tonnage, fish hold capacity in cubic meters, and carrying capacity in metric tons; engine horsepower; date and place where built; and type of fishing method or methods used. The required information shall be collected as part of existing information collections as described in this and other parts of the CFR.
(4)*Purse seine vessel register status.* For a purse seine vessel to be listed on the Vessel Register, and to be categorized as either “active” or “inactive,” in the following calendar year, the vessel owner or managing owner must submit to the Regional Administrator, Southwest Region, the required permit applications, written notifications, and fees as described under § 216.24(b) of this title and under paragraphs (b)(4)(i) and (b)(4)(iii) of this section.
(i)*Active status.* As early as August 1 of each year, vessel owners or managing owners may request that a purse seine vessel qualified to be listed on the Vessel Register under paragraph (b)(2) of this section be categorized as active for the following calendar year. To request a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity be listed on the Vessel Register and be categorized as active, the vessel owner or managing owner must submit to the Regional Administrator, Southwest Region, the vessel permit application and payment of the permit application fee and vessel assessment fee. To request a purse seine vessel of 400 st (362.8 mt) carrying capacity or less be listed on the Vessel Register and be categorized as active, the vessel owner or managing owner must submit to the Regional Administrator, Southwest Region, written notification including, but not limited to, a vessel photograph, the vessel information as described under paragraph (b)(3) of this section, and the owner or managing owner's signature and business telephone and fax numbers. If a purse seine vessel of 400 st (362.8 mt) carrying capacity or less is required by the Agreement on the IDCP to carry an observer, the vessel owner or managing owner must also submit payment of the vessel assessment fee to the Regional Administrator, Southwest Region. Vessel permit applications and written notifications must be submitted by fax to
(562)980-4047. The Regional Administrator must receive the vessel permit application or written notification and payment of the permit application fee and vessel assessment fee no later than September 15 for vessels for which a DML was requested for the following year and no later than November 30 for vessels for which a DML was not requested for the following year. Submission of the vessel permit application or written notification and payment of the vessel assessment fee and permit application fee will be interpreted by the Regional Administrator as a request for a vessel to be categorized as active. The following restrictions apply to active status:
(A)The cumulative carrying capacity of all purse seine vessels categorized as active on the Vessel Register may not exceed 8,969 mt in a given year;
(B)A purse seine vessel may not be added to active status on the Vessel Register unless the captain of the vessel has obtained a valid operator permit under § 216.24(b)(2) of this title;
(C)For 2005 only, requests for vessels will be prioritized on a first-come, first-served basis according to the date and time the fax is received in the office of the Regional Administrator;
(D)Requests for active status for 2006 and subsequent years will be prioritized according to the following hierarchy: ( *1* ) Requests received for vessels that were categorized as active in the previous year, beginning with the vessel's status in 2005, unless the request for active status was determined to be frivolous by the Regional Administrator under paragraph (b)(4)(ii) of this section; ( *2* ) Requests received for vessels that were categorized as inactive under paragraph (b)(4)(iii) of this section in the previous year, beginning with the vessel's status in 2005; ( *3* ) Requests for vessels not described in paragraphs (b)(4)(i)(D)(1) or
(2)of this section will be prioritized on a first-come, first-served basis according to the date and time stamp printed by the incoming fax machine upon receipt, provided that the associated vessel assessment fee is paid by the applicable deadline described in § 216.24(b)(6)(iii) of this title; and ( *4* ) Requests received from owners or managing owners of vessels that were determined, by the Regional Administrator, to have made a frivolous request for active status under paragraph (b)(4)(ii) of this section.
(ii)*Frivolous requests for active status.* Beginning with requests made for 2005, a request for active status under paragraph (b)(4)(i) of this section will be considered frivolous, unless as a result of force majeure or other extraordinary circumstances as determined by the Regional Administrator, if, for a vessel categorized as active in a given calendar year,
(A)Less than 20 percent of the vessel's total landings, by weight, in that same year is comprised of tuna harvested by purse seine in the Convention Area; or
(B)The vessel did not fish for tuna at all in the Convention Area in that same year.
(iii)*Inactive status.* From August 1 through November 30 of each year, vessel owners or managing owners may request that purse seine vessels qualified to be listed on the Vessel Register under paragraph (b)(2) of this section be categorized as inactive for the following calendar year. To request a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity be listed on the Vessel Register and categorized as inactive for the following calendar year, the vessel owner or managing owner must submit to the Regional Administrator, Southwest Region, payment of the associated vessel assessment fee. Payment of the vessel assessment fee consistent with inactive status will be interpreted by the Regional Administrator as a request for the vessel to be categorized as inactive. To request a purse seine vessel of 400 st (362.8 mt) carrying capacity or less be listed on the Vessel Register and categorized as inactive for the following calendar year, the vessel owner or managing owner must submit by mail to the Regional Administrator, Southwest Region, a written notification including, but not limited to, the vessel name and registration number and the vessel owner or managing owner's name, signature, business address, and business telephone and fax numbers. Payment of the vessel assessment fee is not required for vessels of 400 st (362.8 mt) carrying capacity or less to be categorized as inactive. At any time during the year, a vessel owner or managing owner may request that a purse seine vessel qualified to be listed on the Vessel Register under paragraph (b)(2) of this section be categorized as inactive for the remainder of the calendar year. To request a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity be listed on the Vessel Register and categorized as inactive for the remainder of the calendar year, the vessel owner or managing owner must submit to the Regional Administrator payment of the associated vessel assessment fee, plus a 10 percent surcharge of the fee if the vessel was listed on the Vessel Register in the previous year. To request a purse seine vessel of 400 st (362.8 mt) carrying capacity or less be listed on the Vessel Register and categorized as inactive for the remainder of the calendar year, the vessel owner or managing owner must submit to the Regional Administrator written notification as described in this paragraph (payment of the vessel assessment fee is not required).
(5)* * *
(iv)For failure to pay a penalty or for default on a penalty payment agreement resulting from a final agency action for a violation;
(vi)If the vessel does not have a valid state registration or U.S. Coast Guard certificate of documentation;
(vii)For tuna purse seine vessels, upon receipt of written notification from the owner or managing owner of the intent to transfer the vessel to foreign registry and flag, as described in paragraph (b)(8) of this section; or
(viii)For tuna purse seine vessels, if the request for active status on the Vessel Register has been determined to be a frivolous request.
(7)*Procedures for replacing purse seine vessels removed from the Vessel Register.*
(i)A purse seine vessel in excess of 400 st (362.8 mt) carrying capacity that was previously listed on the Vessel Register, but not included for a given year or years, may be added back to the Vessel Register and categorized as inactive at any time during the year, provided the owner or managing owner of the vessel pays the vessel assessment fee associated with inactive status. Payments received will be subject to a 10 percent surcharge for vessels that were listed on the Vessel Register in the calendar year prior to the year for which inactive status was requested. A purse seine vessel of 400 st (362.8 mt) carrying capacity or less that was previously listed on the Vessel Register, but not included for a given year or years, may be added back to the Vessel Register and categorized as inactive at any time during the year, provided the owner or managing owner of the vessel submits written notification as described in paragraph (b)(4)(iii) of this section.
(ii)A purse seine vessel may be added to the Vessel Register and categorized as active in order to replace a vessel removed from active status under paragraph (b)(5) of this section, provided the total carrying capacity of the active vessels does not exceed 8,969 mt and the owner submits a complete request under paragraph (b)(7)(iv) or (b)(7)(v) of this section.
(iii)After a purse seine vessel categorized as active is removed from the Vessel Register, the Regional Administrator, Southwest Region, will notify owners or managing owners of vessels categorized as inactive that replacement capacity is available on the active list of the Vessel Register. In the event that owners of inactive vessels do not request to replace a removed vessel, the Regional Administrator will notify owners of vessels eligible for, but not included on, the Vessel Register that replacement capacity is available on the active list of the Vessel Register.
(iv)Vessel owners or managing owners may request a purse seine vessel of 400 st (362.8 mt) carrying capacity or less be categorized as active to replace a vessel removed from the Vessel Register by submitting to the Regional Administrator, Southwest Region, written notification as described in paragraph (b)(4)(i) of this section and, only if the vessel is required by the Agreement on the IDCP to carry an observer, payment of the vessel assessment fee within 10 business days after submission of the faxed written notification. The replacement vessel will be eligible to be categorized as active on the Vessel Register if it has a carrying capacity equal to or less than the vessel being replaced. Payments received will be subject to a 10 percent surcharge for vessels that were listed on the Vessel Register at the beginning of the calendar year, or in the calendar year prior to the year, for which active status was requested.
(v)Vessel owners or managing owners may request a purse seine vessel in excess of 400 st (362.8 mt) carrying capacity be categorized as active to replace a vessel removed from the Vessel Register by submitting to the Regional Administrator, Southwest Region, the vessel permit application as described under § 216.24(b) of this title and payment of the vessel assessment fee and permit application fee within 10 business days after submission of the faxed vessel permit application for the replacement vessel. The replacement vessel will be eligible to be categorized as active on the Vessel Register if it has a carrying capacity equal to or less than the vessel being replaced, and the captain of the replacement vessel possesses an operator permit under § 216.24(b) of this title. Payments received will be subject to a 10 percent surcharge for vessels that were listed on the Vessel Register at the beginning of the calendar year, or in the calendar year prior to the year, for which active status was requested.
(vi)The Regional Administrator, Southwest Region, will forward requests to replace vessels removed from the Vessel Register within 15 days of receiving each request.
(8)The owner or managing owner of a purse seine vessel listed on the Vessel Register must provide written notification to the Regional Administrator, Southwest Region, prior to submitting an application for transfer of the vessel to foreign registry and flag. Written notification must be submitted by mail and received by the Regional Administrator at least 10 business days prior to submission of the application for transfer. The written notification must include the vessel name and registration number; the expected date that the application for transfer will be submitted; and the vessel owner or managing owner's name and signature. Vessels that require approval by the U.S. Maritime Administration prior to transfer of the vessel to foreign registry and flag will not be subject to the notification requirement described in this paragraph. 10. In § 300.23, revise the section heading to read as follows: § 300.23 Eastern Pacific fisheries—Persons and vessels exempted. 11. In § 300.24, remove the semicolons at the end of paragraphs (b), (e), (f), and
(g)and replace them with periods; remove “; or” at the end of paragraph
(h)and replace it with a period; and add a new paragraph
(j)to read as follows: § 300.24 Prohibitions.
(j)Fail to provide written notification as described under § 300.22(b)(8) to the Regional Administrator, Southwest Region, at least 10 business days prior to submission of an application to transfer a purse seine vessel listed on the Vessel Register to foreign registry and flag, unless transfer of the vessel requires approval by the U.S. Maritime Administration. 12. In § 300.25, revise paragraph (a), the heading for paragraph
(e)and revise paragraph (e)(1) to read as follows: § 300.25 Eastern Pacific fisheries management.
(a)*Notification of IATTC recommendations and resolutions.* Fishery management resolutions made by the IATTC and approved by the Department of State will be promulgated in the **Federal Register** via appropriate rulemaking. The publication in the **Federal Register** will summarize the fishery management resolutions and respond to any public comments received by NMFS.
(e)*Bycatch reduction measures* —(1) All purse seine vessels must retain on board and land all bigeye, skipjack, and yellowfin tuna brought on board the vessel after a set, except fish deemed unfit for human consumption for other than reason of size. This requirement shall not apply to the last set of a trip if the available well capacity is insufficient to accommodate the entire fish catch brought on board. [FR Doc. E8-15803 Filed 7-10-08; 8:45 am] BILLING CODE 3510-22-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 071003556-7575-01] RIN 0648-AW08 Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Amendment 15 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS issues this proposed rule to implement Amendment 15 to the Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 15 would modify the FMP to implement a limited entry program for the non-tribal Pacific whiting fishery. Amendment 15 was approved by NMFS on June 18, 2008, and in accordance with the notification procedures of the Magnuson-Stevens Fishery Conservation and Management Act, the Pacific Fishery Management Council was notified of this approval. Amendment 15 is intended to serve as an interim measure to limit potential participation in the Pacific whiting fishery within the U.S. West Coast Exclusive Economic Zone until implementation of a trawl rationalization program under Amendment 20 to the Groundfish FMP. DATES: Comments on this proposed rule must be received on or before August 11, 2008. ADDRESSES: Amendment 15 is available on the Pacific Fishery Management Council's (Council's or Pacific Council's) website at: h *ttp://www.pcouncil.org/groundfish/gffmp.html* . You may submit comments, identified by RIN 0648-AW08 by any of the following methods: • Electronic Submissions: Submit all electronic public comments via the FederaleRulemaking Portal: *http://www.regulations.gov* . • Fax: 206-526-6736, Attn: Becky Renko. • Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, Attn: Becky Renko, 7600 Sand Point Way NE, Seattle, WA 98115-0070. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to the Northwest Region (see ADDRESSES ) and by e-mail to *David_Rostker@omb.eop.gov* , or fax to
(202)395-7285. Send comments on collection-of-information requirements to the NMFS address above and to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB), Washington DC 20503 (Attn: NOAA Desk Officer). Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Becky Renko, phone: 206-526-6110, fax: 206-526-6736, or e-mail: *becky.renko@noaa.gov* , or for permitting information, Kevin Ford, phone: 206-526-6115, fax: 206-526-6736, or e-mail: *kevin.ford@noaa.gov* . SUPPLEMENTARY INFORMATION: Electronic Access This proposed rule is accessible via the Internet at the Office of the **Federal Register** 's Web site at *http:// www.access.gpo.gov/su_docs/aces/aces140.html* . Background information and documents are available at the NMFS Northwest Region Web site at *http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/index.cfm* . NMFS is proposing this rule to implement Amendment 15 to the FMP, which would create a limited entry program for the three non-tribal sectors of the Pacific whiting fishery off the U.S. West Coast. Under current Federal regulations, Pacific whiting shoreside fishery catcher vessels, mothership catcher vessels, and catcher/processor vessels, must be registered to a groundfish limited entry permit. The limited entry program has been in place since 1994 and allows appropriately registered vessels to harvest groundfish, targeting any of the 90+ species managed under the FMP. The proposed action to implement Amendment 15 to the FMP would require vessels that wish to harvest and/or process Pacific whiting in the non-tribal Pacific whiting fishery to qualify for a Pacific whiting vessel license limitation program. This is in addition to the requirement for harvesting vessels to be registered for use with groundfish limited entry permits. Amendment 15 is intended to serve as an interim measure that sunsets when the Pacific Fishery Management Council adopts and the National Marine Fisheries Service implements a trawl rationalization program under Amendment 20 to the Pacific Groundfish FMP. Amendment 20 is currently under development by the Council, which adopted its preliminary preferred alternative at the June Council meeting. The Council anticipates taking final action on the trawl rationalization program in November 2008. If NMFS approves the Amendment, implementation is scheduled for late 2010, at which time Amendment 15 would no longer be effective. If development and implementation of Amendment 20 is delayed beyond that point, NMFS intends to request that the Council reconsider the provisions of Amendment 15. NMFS published a Notice of Availability for Amendment 15 on March 19, 2008 (73 FR 14765), and is requested public comment on it through May 19, 2008. Amendment 15 was approved by NMFS on June 18, 2008. Background Pacific whiting ( *Merluccius productus* ), also known as Pacific hake, is a semi-pelagic and relatively productive species that ranges from Sanak Island in the western Gulf of Alaska to Magdalena Bay, Baja California Sur, Mexico. They are most abundant in the California Current System, off the U.S. West Coast. Pacific whiting landings represent the most significant single-species contribution to West Coast groundfish landings from the 90+ groundfish species managed under the FMP by several orders of magnitude. In general, Pacific whiting is a very productive species with highly variable recruitment (the biomass of fish that mature and enter the fishery each year) and a relatively short life span when compared to other groundfish species. In 1987, the Pacific whiting biomass was at a historically high level due to an exceptionally large number of fish that had spawned in 1980 and 1984 (fished spawned during a particular year are referred to as year classes). As these large year classes of fish passed through the population and were replaced by moderate sized year classes, the stock declined. The Pacific whiting stock stabilized between 1995 and 1997, but then declined to its lowest level in 2001. After 2001, the Pacific whiting biomass increased substantially as a strong 1999 year class matured and entered the spawning population. The contribution of the 1999 year class to the total population is rapidly declining as it matures. Coastwide Pacific whiting harvest is managed via a 2003 U.S.-Canada agreement on Pacific whiting conservation, research, and catch sharing. Under that agreement, U.S. fisheries have access to 73.88 percent of the total annual Pacific whiting optimum yield (OY), with Canadian fisheries having access to 26.12 percent of the OY. Pacific whiting harvest within U.S. waters is first allocated between tribal and non-tribal fisheries. In 1994, the United States formally recognized that the four Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights to fish for groundfish in the Pacific Ocean. In general terms, the quantification of those rights is 50 percent of the harvestable surplus of groundfish that pass through the tribes' usual and accustomed ocean fishing areas (described at 50 CFR 660.324). To date, only the Makah Tribe has participated in a tribal fishery for Pacific whiting. Beginning in 1999, NMFS set the tribal allocation according to an abundance-based sliding scale method, proposed by the Makah Tribe in 1998 (see 64 FR 27928 (May 29, 1999); 65 FR 221, (January 4, 2000); 66 FR 2338 (January 11, 2001).) On December 28, 2004, the Ninth Circuit Court of Appeals upheld the sliding scale approach in *Midwater Trawler Cooperative* v. *Daley* , 393 F. 3d 994 (9 th Cir. 2004). Under the sliding scale allocation method, the tribal allocation varies with the U.S. Pacific whiting OY, ranging from 14 percent (or less) of the U.S. OY when OY levels are above 250,000 mt, to 17.5 percent of the U.S. OY when the OY level is at or below 145,000 mt. Since 1997, the non-tribal Pacific whiting fishery has been divided into three separate sectors: the shore-based sector, which is composed of vessels that harvest whiting for delivery to land-based processors; the mothership sector, which is composed of catcher vessels that harvest whiting and mothership vessels that process; and, the catcher/processor sector, which is composed of vessels that harvest and process whiting. Domestic allocation of the annual U.S. Pacific whiting OY between these three sectors is provided for within Federal regulations at 50 CFR 660.323(a)(2): 34 percent for the catcher/processor sector; 24 percent for the mothership sector; and 42 percent for the shore-based sector. In addition to these between-sector allocations, no more than 5 percent of the shore-based allocation may be taken and retained south of 42° N. lat. before the June 15 start of the shore-based sector primary Pacific whiting season north of 42° N. lat. The American Fisheries Act
(AFA)and Amendment 15 The 1998 AFA was designed to strengthen U.S. ownership standards that had been exploited under the Anti-reflagging Act, and to rationalize the Bering Sea and Aleutian Islands
(BSAI)walleye pollock (pollock) fishery while protecting non-AFA participants in other fisheries. The AFA prioritized U.S. interests in the harvest of U.S. fishery resources and decapitalized the BSAI pollock fishery through buyouts. Management measures required by the AFA include
(1)regulations that limit access into the fishing and processing sectors of the BSAI pollock fishery and that allocate pollock to such sectors,
(2)regulations governing the formation and operation of fishery cooperatives in the BSAI pollock fishery,
(3)regulations to protect other fisheries from spillover effects from AFA, and
(4)regulations governing catch measurement and monitoring in the BSAI pollock fishery. Section 211 of the AFA requires the Pacific Council, not later than July 1, 2000, to recommend conservation and management measures it determines necessary to protect fisheries under its jurisdiction and the participants in those fisheries from adverse impacts caused by the AFA, or by any fishery cooperatives in the directed pollock fishery. In response to this requirement, the Council initiated discussions on Amendment 15 to the FMP in September 1999. At that time, the initial intent of Amendment 15 was to restrict AFA-qualified vessels that had not met historic Pacific whiting landing requirements during the 1994-1999 period from future participation in the Pacific Coast groundfish fishery. In September 2001, the Council reviewed a range of alternatives and initial analysis for Amendment 15. The draft environmental assessment
(EA)identified four key issues: qualifying criteria for AFA catcher vessels; whether AFA catcher vessel restrictions would be on vessels, permits held by vessels, or both; qualifying criteria for AFA catcher processors; qualifying criteria for AFA motherships; and duration of the restrictions. Upon reviewing the draft 2001 EA, the Council determined that there was no imminent harm to West Coast groundfish fisheries from the AFA. This determination, in combination with competing workload led the Council to table action on Amendment 15 in 2001. Amendment 15 in the 2007 Council Process In 2005 and 2006, market conditions for Pacific whiting changed dramatically, with prices paid to fishermen increasing from an average price of about $0.04 per pound ($88 per ton) in the 1992-2005 period to more than $ 0.06 per pound ($143 per ton) in 2006. Preliminary information for Oregon shore-based landings of Pacific whiting indicates an increase from $0.07 in 2006 to $0.08 in 2007, doubling the historic average price. The rise in ex-vessel prices was stimulated by increased world demand for whiting products, in particular new markets for headed and gutted whiting. Higher Pacific whiting prices attracted new entrants to the Pacific whiting fishery from vessels with Pacific coast limited entry groundfish permits that had historically participated in the non-whiting groundfish fisheries, that had purchased West Coast limited entry permits for the purpose of joining the Pacific whiting fishery, or that had historic Pacific whiting catch in one sector but were newly entering other sectors. Historic fishery participants were concerned that new fishery entrants would ultimately accelerate the race for fish in the fishery, making the fishery more dangerous for participants and more prone to poor decision-making in fishing and which could ultimately result in higher rates of bycatch of protected or overfished species associated with Pacific whiting. Some of the new entrants to the Pacific whiting fishery were AFA-qualified vessels with fishing operations off Alaska. Therefore, in 2006, fishing industry members requested that the Council re-open consideration of Amendment 15 to the FMP. In September 2006, the Council again took up Amendment 15 and, realizing that an FMP amendment could not be completed in time to affect the 2007 Pacific whiting fishery, discussed how to limit Pacific whiting fishery participation in 2007. To address short-term participation in the Pacific whiting fishery, the Council requested that NMFS implement an emergency rule for the 2007 fishery that would prohibit participation in a non-tribal sector by AFA-qualified vessels that had no historic participation in that sector prior to 2006. NMFS denied this request primarily because it would not have restricted participation in the 2007 fishery by non-AFA vessels; therefore, the requested rule would not solve the serious conservation or management problems in the fishery the Council had identified. Current harm to the fishery could not be traced back solely to the AFA itself, which meant that an emergency rule designed to exclude only AFA-qualified vessels could not be approved. The Council re-visited its emergency rule request at its March 2007 meeting, and ultimately recommended that NMFS implement an emergency rule. After concluding that conditions were such that new entry into the non-tribal sectors was likely in 2007, the Council recommended an emergency rule to prohibit participation in a particular non-tribal sector by a vessel without a history of sector-specific participation between January 1, 1997 and January 1, 2007. NMFS implemented this request on May 14, 2007 (72 FR 27759, May 17, 2007) stating concern that an accelerated “race for fish” was likely to cause serious conservation and management problems. The emergency rule was intended to be interim until longer term regulations could be implemented. Continuing its work for 2008 and beyond, the Council again addressed Amendment 15 at its April, June, and September 2007 meetings. Based on continued concern with conservation effects of increased entry and the resulting race for fish, the Council discussed action alternatives that would restrict participation in the sectors by any vessel, not just AFA-qualified vessels, that did not meet particular landings requirements. The action alternatives differed only in the qualifications necessary to participate in particular non-tribal sectors of the Pacific whiting fishery. At its September 9-14, 2007 meeting in Portland, Oregon, the Council reviewed an EA and draft amendatory language for Amendment 15, and listened to the advice of its advisory bodies and members of the public on choosing a preferred alternative for implementing Amendment 15. Council discussions concerned the likelihood of new entry given increased whiting exvessel prices and declining pollock quotas. Council discussions centered on the effects of new entry into a fishery already experiencing declining limited West Coast trawl opportunities due to overfished species rebuilding measures, concerns about the conservation of overfished groundfish stocks and salmon stocks listed under the Endangered Species Act, increased costs to manage the fishery if it becomes faster paced due to increased participation, and the decreased economic returns to historical harvesters from new entrants. Ultimately, the Council chose a hybrid alternative that combined historic qualification preferences expressed by participants in the three different non-tribal sectors, based on the evolution of the different sectors. The Council's preferred alternative for Amendment 15, which this rule proposes to implement, would restrict participation in the non-tribal sectors as follows: catcher vessels in the Pacific whiting shoreside fishery would be required to have made sector-specific Pacific whiting landings in any one calendar year during the period of January 1, 1994, through January 1, 2007; vessels participating in either the catcher/processor or mothership sector would be required to have either caught and processed Pacific whiting (catcher/processor sector,) caught and delivered Pacific whiting (catcher vessels in mothership sector,) or processed Pacific whiting (motherships) in any one calendar year during the period of January 1, 1997 through January 1, 2007. This would be the first participation requirement for motherships, which, unlike catcher vessels, have not needed a groundfish limited entry permit registered to them. The Council preferred the 1994 qualifying period start date for the shore-based sector because that was the first year the groundfish limited entry program was in effect. For the at-sea sectors, however, 1997 was the preferred qualifying period start date because that was the first year that Pacific whiting was specifically allocated between the three sectors. Prior to 1997, Pacific whiting catch was allocated between vessels that landed on shore and those that caught Pacific whiting for processing at sea. Amendment 15 Implementing Regulations Amendment 15 proposes to implement a limited entry program for the three non-tribal sectors of the Pacific whiting fishery. Vessels would be required to meet certain participation criteria and, with the exception of the motherships, would also be required to have the vessel registered to a Pacific Coast groundfish limited entry permit. Motherships would only be required to meet the participation criteria. The regulations proposed in this rule for Amendment 15 would follow NMFS Northwest Region's historic practices for implementing license limitation and permit limitation programs, such as the groundfish limited entry program itself, the sablefish endorsement program, and the three-tier sablefish program. Under the proposed regulations, NMFS would mail Pacific whiting vessel license applications to all current and prior owners of vessels that have been registered for use with limited entry permits with trawl endorsements, excluding owners of those vessels whose permits were purchased through the Pacific Coast groundfish fishing capacity reduction program. NMFS would also make license applications available online at: *http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Permits/index.cfm* . To participate in the fishery in 2009 and beyond, a vessel owner who believes that his/her vessel may qualify for the Pacific whiting vessel license would have until December 31, 2008, to submit documentation showing how his/her vessel has met the qualifying criteria. NMFS will not accept applications for Pacific whiting vessel licenses received after December 31, 2008. After receipt of a complete application, NMFS will notify applicants by letter of its determination whether their vessels qualify for Pacific whiting vessel licenses and the sector or sectors to which the licenses apply. Vessels that have met the qualification criteria will be issued the appropriate licenses at that time. For 2008, the proposed action would prohibit vessels from fishing, landing, or processing Pacific whiting in a primary whiting season from the effective date of this action through December 31, 2008, with a catcher/processor, mothership or mothership catcher vessel that has no history of participation within that specific sector of the whiting fishery during the period from January 1, 1997, through January 1, 2007, or with a shoreside catcher vessel that has no history of participation within the shore-based sector of the whiting fishery during the period from January 1, 1994 through January 1, 2007, as specified in § 660.373(j). Participation in the shore-based sector is in reference to participation in the primary whiting season. This rule proposes that, in order to qualify for a Pacific whiting vessel license in the shore-based sector, documentation is required to show the vessel made at least one landing of whiting taken with mid-water trawl gear during a primary shore based season during the period January 1, 1994 through January 1, 2007, and that the weight of whiting exceeded 50 percent of the total weight of the landing. NMFS is authorized under the Magnuson-Stevens Act to collect funds from permit recipients to recover the cost of the permitting process. NMFS initially estimates that the fee for initial issuance of Pacific whiting licenses will be $650 per license it issued. NMFS must receive the fee payment in full to consider the application complete and to process the application. For 2009, NMFS would both publish a list of vessels that have qualified for the Pacific whiting vessel license in the **Federal Register** , and would issue licenses to those vessels that apply prior to the start of the 2009 fishing season. Each license will indicate the sector or sectors for which the vessel has qualified. To participate in any of the non-tribal whiting sectors in 2009 and beyond, a harvesting vessel would be required to be registered for use with both a groundfish limited entry permit and with a Pacific whiting vessel license. The license would be associated with the vessel, not with a limited entry permit. A mothership vessel that processes whiting, but does not harvest would only be required to have a whiting vessel license for the mothership sector. Therefore, once issued, the Pacific whiting vessel license would not be re-issued unless it has been lost, or unless there is some change in the vessel owner information for the vessel to which it is registered. Consistent with the intent of Amendment 15, Pacific whiting vessel license holders would not be allowed to transfer those licenses to any other vessels. Based on an initial review of potential qualifying vessels for each sector, NMFS anticipates that there would be some catcher vessels that qualify to be licensed for both the shore-based and mothership sectors. However, NMFS also anticipates that there would not be any vessels that qualify to be licensed as both a catcher/processor and as a mothership processor. Therefore, NMFS is proposing via this action to remove § 660.373(h), which allows that catcher/processor vessels have mobility between the different sectors mobility that the Council has recommended eliminating via Amendment 15. The proposed regulations to implement Amendment 15 would also correct an error made in the temporary rule discussed above and published on May 14, 2007 (72 FR 27759.) Through a mistake in the “ DATES ” section of the May 17, 2007, temporary rule, NMFS made permanent revisions to 50 CFR 660.333 and 660.335. These permanent revisions allow limited entry trawl permits that were created between December 31, 2006, and May 14, 2007, by aggregating multiple limited entry permits, to be disaggregated back into the initially combined component parts - an action otherwise prohibited by limited entry permit regulations. At least one vessel owner who had, prior to the implementation of the temporary rule, prepared for participating in the 2007 Pacific whiting fishery by purchasing and aggregating permits in order to create a permit with a length endorsement long enough to suit their vessel. The temporary rule provided an exception to regulations that would normally not allow disaggregating permits, in order to mitigate for the potential long-term effects on vessel owners who had expected to become new participants in the 2007 Pacific whiting fishery, but who were prevented by the temporary rule. Because this provision was improperly implemented as a permanent change to Federal regulations instead of temporarily as provided by the Magnuson-Stevens Act, NMFS proposes to correct that mistake via this proposed rule to implement Amendment 15. NMFS announced this intent in the notice that extended the emergency rule (72 FR 64953; November 19, 2007) These corrections would affect 50 CFR 660.333(f) and 660.335(f)(3). Regulations Steamlining In addition to this correction, this action also proposes a measure for Federal regulations at § 660.335(a). In their review of Chapter 11 of the FMP, NMFS and the Council noted that the chapter includes a requirement held over from Amendment 6, the original limited entry program, that calls for NMFS to send out notification of annual limited entry permit renewals by September 1 of each year. This September 1 notification date was included in the FMP in order to accommodate an annual 60-day renewal period for vessel owners of October 1 through November 30. This provision is implemented in Federal regulations at § 660.335(a)(2), which states in part, “Notification to renew limited entry permits will be issued by SFD prior to September 1 each year to the most recent address of the permit owner...'' The Council recommended that Amendment 15 include a shift in the permit renewal notification date from September 1 to September 15. This shift would not alter the October 1 through November 30 renew period; rather, it would help to ensure that renewals do not occur prior to October 1st, which would be beneficial both from an accounting perspective and from an agency workload perspective. The Federal fiscal year begins October 1st. When NMFS sends permit renewal notices by September 1st, many permit owners diligently renew their permits as quickly as possible, often sending renewals and fees by mid-September. NMFS immediately deposits funds received, in keeping with good accounting practices. As a result of this one-month lag between renewal notices and fiscal year start date, each renewal period inevitably includes funds received in two separate fiscal years. Moving the renewal date to September 15th would aid NMFS by ensuring that funds received to renew permits for a particular fishing year are credited to the applicable fiscal year. September 1st is also the start of a two-month cumulative limit period, which means that the week just prior to September 1st, numerous permit owners submit permit transfers to move their permits to new boats for the start of the September-October cumulative limit period. This particular cumulative limit period is often active for permit transfers, since it is the last cumulative limit period that also falls within the April - October primary tier sablefish fishing season. Moving the renewal date to September 15th would allow NMFS to process last-minute permit transfer requests before sending renewal notification packets to permit owners. This will ensure that all renewal forms reflect the most recent changes to these permits. For these reasons, Amendment 15 authorizes Federal regulations at § 660.335(a)(2) to be revised to read in part, “Notification to renew limited entry permits will be issued by SFD prior to September 15 each year to the most recent address of the permit owner. . . .” Classification Pursuant to section 304 of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined to be significant for purposes of Executive Order 12866. An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES ). The Small Business Administration has established size criteria for all major industry sectors in the US including fish harvesting and fish processing businesses. The RFA recognizes and defines three kinds of small entities: small businesses, small organizations, and small governmental jurisdictions. NMFS March 2007 Economic Guidelines ( *http://www.nmfs.noaa.gov/sfa/domes_fish/EconomicGuidelines.pdf* ) establish the current size standards for Magnuson-Stevens Act related rules as follows: Any fish-harvesting or hatchery business is a small business if it is independently owned and operated and not dominant in its field of operation and if it has total annual gross receipts not in excess of $4.0 million. Total annual gross receipts should include those of affiliates when practicable and appropriate to do so. Any vessel which both harvests and processes fish (also referred to as a catcher processor) is currently considered a small business if its combined total annual gross receipts (including all affiliates, worldwide, where practicable and appropriate) are not in excess of $4.0 million. Adoption of Amendment 15 under the preferred alternative is expected to maintain the existing economic character of the Pacific whiting fishery. The actual levels of jobs, revenues, profits and total personal income for fishery participants and the affected communities will be influenced by such things as the abundance of Pacific whiting, market prices for Pacific whiting and substitute commodities and the condition of other fishery resources. The number of fishery participants is expected to stay relatively consistent with the numbers observed in past years as no new entrants to the Pacific whiting fishery will be permitted. Accordingly, the economic impacts of the proposed action per se on existing businesses are expected to be minimal provided that a significant number of historically active vessels are not both eligible for the limited Pacific whiting licenses and choose to enter the fishery. Either because of participation in Alaska Pollock and other fisheries or being affiliated with large seafood companies, catcher/processor and mothership operations operating in the WOC are not considered small businesses. Since 1994, approximately 26-31 catcher vessels have participated in the shoreside fishery annually. Approximately 10-43 catcher vessels have participated in the mothership fishery annually since 1994. These companies are all assumed to be small businesses. This rulemaking is expected to have minimal impacts on the business that catcher vessels conduct with the mothership processors and shore-based processors. It is also expected to have minimal impact on vessels in the catcher/processor sector of the fishery. If anything, this rule maintains the economics of the existing small businesses participating in the fishery as it prevents new vessels, potentially the larger vessels from Alaska, from participating in the fishery. NMFS is aware of one company that has purchased several permits for possible combination into a single large permit that has the length endorsement for use with a catcher/processor vessel, but this company is not considered a small company as its involvement in Alaska pollock fisheries suggests that it earns more than $4.0 million in revenues. There may be other companies large or small that wish to enter the fishery but we are unaware of any investments that have been undertaken specifically for entering the whiting fishery. This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. Public reporting burden for applying for a Pacific whiting licenses is estimated to average 60 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to Northwest Region at the ADDRESSES above, and by e-mail to *David_Rostker@omb.eop.gov* or fax to
(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal, and Oregon coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, southern California). NMFS reinitiated a formal section 7 consultation under the ESA in 2005 for both the Pacific whiting midwater trawl fishery and the groundfish bottom trawl fishery. The December 19, 1999, Biological Opinion had defined an 11,000 Chinook incidental take threshold for the Pacific whiting fishery. During the 2005 Pacific whiting season, the 11,000-fish Chinook incidental take threshold was exceeded, triggering reinitiation. Also in 2005, new data from the West Coast Groundfish Observer Program became available, allowing NMFS to do a more complete analysis of salmon take in the bottom trawl fishery. NMFS completed its reinitiation consultation and prepared a Supplemental Biological Opinion dated March 11, 2006. In its 2006 Supplemental Biological Opinion, NMFS concluded that catch rates of salmon in the 2005 Pacific whiting fishery were consistent with expectations considered during prior consultations. Chinook bycatch has averaged about 7,300 over the last 15 years and has only occasionally exceeded the reinitiation trigger of 11,000. Since 1999, annual Chinook bycatch has averaged about 8,450. The Chinook ESUs most likely affected by the Pacific whiting fishery have generally improved in status since the 1999 section 7 consultation. Although these species remain at risk, as indicated by their ESA listing, NMFS concluded that the higher observed bycatch in 2005 does not require a reconsideration of its prior “no jeopardy” conclusion with respect to the fishery. For the groundfish bottom trawl fishery, NMFS concluded that incidental take in the groundfish fisheries is within the overall limits articulated in the Incidental Take Statement of the 1999 Biological Opinion. The groundfish bottom trawl limit from that opinion was 9,000 fish annually. NMFS will continue to monitor and collect data to analyze take levels. NMFS also reaffirmed its prior determination that implementation of the Groundfish FMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) were recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead. The Southern Distinct Population Segment
(DPS)of green sturgeon (71 FR 17757, April 7, 2006) were also recently listed as threatened under the ESA. As a consequence, NMFS has reinitiated its Section 7 consultation on the PFMC's Groundfish FMP. After reviewing the available information, NMFS concluded that, in keeping with Sections 7(a)(2) and 7(d) of the ESA, the proposed action would not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. Pursuant to Executive Order 13175, this action was developed through the Council process with meaningful collaboration with tribal officials from the area covered by the FMP. The tribal representative on the Council did not make a motion on this action for tribal fisheries. List of Subjects in 50 CFR Part 660 Fisheries, Fishing, Indian fisheries. Dated: July 7, 2008. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows: PART 660—FISHERIES OFF WEST COAST STATES l. The authority citation for part 660 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 660.306, paragraph (f)(7) is removed, paragraphs (f)(1) through (f)(6) are redesignated as paragraphs (f)(2)through (f)(7), respectively, and a new paragraph (f)(1) is added to read as follows: § 660.306 Prohibitions.
(f)* * *
(1)Fish in any of the sectors of the whiting fishery described at § 660.373(a) after January 1, 2009 using a vessel that is not registered for use with a sector-appropriate Pacific whiting vessel license under § 660.336. Prior to January 1, 2009, vessels are prohibited from fishing, landing, or processing Pacific whiting with a catcher/processor, mothership or mothership catcher vessel that has no history of participation within that specific sector of the whiting fishery during the period from January 1, 1997, through January 1, 2007, or with a shoreside catcher vessels that has no history of participation within the shore-based sector of the whiting fishery during the period from January 1, 1994 through January 1, 2007, as specified in § 660.373(j). For the purpose of this paragraph, “historic participation” for a specific sector is the same as the qualifying criteria listed in § 660.336 (a)(2).
(i)If a Pacific whiting vessel license is registered for use with a vessel, fail to carry that license onboard the vessel registered for use with the license at any time the vessel is licensed. A photocopy of the license may not substitute for the license itself.
(ii)[Reserved] 3. In § 660.333, paragraph
(f)is removed and paragraph
(a)is revised to read as follows: § 660.333 Limited entry fishery eligibility and registration.
(a)*General.* A limited entry permit confers a conditional privilege of participating in the Pacific coast groundfish limited entry fishery, in accordance with Federal regulations in 50 CFR part 660. In order for a vessel to participate in the limited entry fishery, the vessel owner must hold a limited entry permit and, through SFD, must register that permit for use with his/her vessel. When participating in the limited entry fishery, a vessel is authorized to fish with the gear type endorsed on the limited entry permit registered for use with that vessel. There are three types of gear endorsements: trawl, longline, and pot (or trap). All limited entry permits have size endorsements and a vessel registered for use with a limited entry permit must comply with the vessel size requirements of this subpart. A sablefish endorsement is also required for a vessel to participate in the primary season for the limited entry fixed gear sablefish fishery, north of 36° N. lat. After December 31, 2008, a catcher vessel participating in either the whiting shore-based or mothership sector must, in addition to being registered for use with a limited entry permit, be registered for use with a sector-appropriate Pacific whiting vessel license under § 660.336. After December 31, 2008, a vessel participating in the whiting catcher/processor sector must, in addition to being registered for use with a limited entry permit, be registered for use with a sector-appropriate Pacific whiting vessel license under § 660.336. After December 31, 2008, although a mothership vessel participating in the whiting mothership sector is not required to be registered for use with a limited entry permit, such vessel must be registered for use with a sector-appropriate Pacific whiting vessel license under § 660.336. 4. In § 660.335, paragraph (f)(3) is removed and paragraph (a)(2) is revised to read as follows: § 660.335 Limited entry permits renewal, combination, stacking, change of permit ownership or permit holdership, and transfer.
(a)* * *
(2)Notification to renew limited entry permits will be issued by SFD prior to September 15 each year to the most recent address of the permit owner. The permit owner shall provide SFD with notice of any address change within 15 days of the change. 5. A new § 660.336 is added to read as follows: § 660.336 Pacific whiting vessel licenses.
(a)*Pacific whiting vessel license* —(1) *General.* After December 31, 2008, participation in the non-tribal primary whiting season described in § 660.373(b) requires that an owner of any vessel that catches or processes Pacific whiting hold: a limited entry permit, registered for use with that vessel, with a trawl gear endorsement; and, a Pacific whiting vessel license, registered for use with that vessel, appropriate to the sector or sectors in which the vessel intends to participate. Pacific whiting vessel licenses are separate from limited entry permits and do not license a vessel to harvest whiting in the primary whiting season unless that vessel is also registered for use with a limited entry permit with a trawl gear endorsement.
(2)*Pacific whiting vessel license qualifying criteria.*
(i)*Qualifying criteria.* Vessel catch and/or processing history will be used to determine whether that vessel meets the qualifying criteria for a Pacific whiting vessel license and to participate in a specific sector of the Pacific whiting fishery in 2008 and to determine the sectors for which that vessel may qualify. Vessel catch and/or processing history includes only the catch and/or processed product of that particular vessel, as identified in association with the vessel's USCG number. Only whiting regulated by this subpart that was taken with midwater (or pelagic) trawl gear will be considered for the Pacific whiting vessel license. Whiting harvested or processed by a vessel that has since been totally lost or decommissioned will not be considered for this license. Whiting harvested or processed illegally or landed illegally will not be considered for this license. Catch and/or processing history associated with a vessel whose permit was purchased by the Federal government through the Pacific Coast groundfish fishing capacity reduction program, as identified in 68 FR 62435 - 62440 (November 4, 2003), does not qualify a vessel for a Pacific whiting vessel license and no vessel owner may apply for or receive a Pacific whiting vessel license based on catch and/or processing history from one of those buyback vessels. The following sector-specific license qualification criteria apply:
(A)For catcher/processor vessels, the qualifying criteria for a Pacific whiting vessel license is evidence of having caught and processed any amount of whiting during a primary catcher/processor season during the period January 1, 1997 through January 1, 2007.
(B)For mothership at-sea processing vessels, the qualifying criteria for a Pacific whiting vessel license is documentation of having received and processed any amount of whiting during a primary mothership season during the period January 1, 1997 through January 1, 2007.
(C)For catcher vessels delivering whiting to at-sea mothership processing vessels, the qualifying criteria for a Pacific whiting vessel license is documentation of having delivered any amount of whiting to a mothership processor during a primary mothership season during the period January 1, 1997, through January 1, 2007.
(D)For catcher vessels delivering whiting to Pacific whiting first receiver, the qualifying criteria for a Pacific whiting vessel license is documentation of having made at least one landing of whiting taken with mid-water trawl gear during a primary shore-based season during the period January 1, 1994, through January 1, 2007, and where the weight of whiting exceeded 50 percent of the total weight of the landing.
(ii)*Documentation and burden of proof.* A vessel owner applying for a Pacific whiting vessel license has the burden to submit documentation that qualification requirements are met. An application that does not include documentation of meeting the qualification requirements during the qualifying years will be considered incomplete and will not be reviewed. The following standards apply:
(A)A certified copy of the current vessel document (USCG or State) is the best documentation of vessel ownership and LOA.
(B)A certified copy of a State fish receiving ticket is the best documentation of a landing at a Pacific whiting shoreside first receiver, and of the type of gear used.
(C)For participants in the at-sea whiting fisheries, documentation of participation could include, but is not limited to: a final observer report documenting a particular catcher vessel, mothership, or catcher/processor's participation in the whiting fishery in an applicable year and during the applicable primary season, a bill of lading for whiting from an applicable year and during the applicable primary season, a catcher vessel receipt from a particular mothership known to have participated in the whiting fishery during an applicable year, a signed copy of a Daily Receipt of Fish and Cumulative Production Logbook (mothership sector) or Daily Fishing and Cumulative Production Logbook (catcher/processor sector) from an applicable year during the applicable primary season.
(E)Such other relevant, credible documentation as the applicant may submit, or the SFD or the Regional Administrator request or acquire, may also be considered.
(3)*Issuance process for Pacific whiting vessel licenses.*
(i)SFD will mail Pacific whiting vessel license applications to all current and prior owners of vessels that have been registered for use with limited entry permits with trawl endorsements, excluding owners of those vessels whose permits were purchased through the Pacific Coast groundfish fishing capacity reduction program. NMFS will also make license applications available online at: *http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Permits/index.cfm* . A vessel owner who believes that his/her vessel may qualify for the Pacific whiting vessel license will have until December 31, 2008, to submit an application with documentation showing how his/her vessel has met the qualifying criteria described in this section. NMFS will not accept applications for Pacific whiting vessel licenses received after December 31, 2008.
(ii)After receipt of a complete application, NMFS will notify applicants by letter of its determination whether their vessels qualify for Pacific whiting vessel licenses and the sector or sectors to which the licenses apply. Vessels that have met the qualification criteria will be issued the appropriate licenses at that time. After December 31, 2008, NMFS will publish a list of vessels that qualified for Pacific whiting vessel licenses in the **Federal Register** .
(iii)If a vessel owner files an appeal from the determination under paragraph (a)(3)(ii) of this section the appeal must be filed with the Regional Administrator within 30 calendar days of the issuance of the letter of determination. The appeal must be in writing and must allege facts or circumstances, and include credible documentation demonstrating why the vessel qualifies for a Pacific whiting vessel license. The appeal of a denial of an application for a Pacific whiting vessel license will not be referred to the Council for a recommendation, nor will any appeals be accepted by NMFS after April 1, 2009.
(iv)Absent good cause for further delay, the Regional Administrator will issue a written decision on the appeal within 30 calendar days of receipt of the appeal. The Regional Administrator's decision is the final administrative decision of the Department of Commerce as of the date of the decision.
(4)*Notification to NMFS of changes to Pacific whiting vessel license information.* The owner of a vessel registered for use with a Pacific whiting vessel license must provide a written request to NMFS to change the name or names of vessel owners provided on the vessel license, or to change the licensed vessel's name. The request must detail the names of all new vessel owners, a business address for the vessel owner, business phone and fax number, tax identification number, date of birth, and/or date of incorporation for each individual and/or entity, and a copy of the vessel documentation (USCG 1270) to show proof of ownership. NMFS will reissue a new vessel license with the names of the new vessel owners and/or vessel name information. The Pacific whiting vessel license is considered void if the name of the vessel or vessel owner is changed from that given on the license. In addition, the vessel owner must report to NMFS any change in address for the vessel owner within 15 days of that change. Although the name of an individual vessel registered for use with a Pacific whiting vessel license may be changed, the license itself may not be registered to any vessel other than the vessel to which it was originally issued, as identified by that vessel's United States Coast Guard documentation number. 6. Section 660.339 is revised to read as follows: § 660.339 Limited entry permit and Pacific whiting vessel license fees. The Regional Administrator will charge fees to cover administrative expenses related to issuance of limited entry permits, and Pacific whiting vessel licenses including initial issuance, renewal, transfer, vessel registration, replacement, and appeals. The appropriate fee must accompany each application. 7. In § 660.373, paragraph
(h)is removed, and paragraphs
(i)and
(j)are redesignated as
(h)and (i), respectively, and paragraph
(a)is revised to read as follows: § 660.373 Pacific whiting (whiting) fishery management.
(a)*Sectors and licensing requirements.* The catcher/processor sector is composed of catcher/processors, which are vessels that harvest and process whiting during a calendar year. The mothership sector is composed of motherships vessels that process whiting and catcher vessels that harvest whiting for delivery to motherships. Motherships are vessels that process, but do not harvest, whiting during a calendar year. The shore-based sector is composed of vessels that harvest whiting for delivery to Pacific whiting shoreside first receivers. In order for a vessel to participate in a particular whiting fishery sector, that vessel must be registered for use with a sector-specific Pacific whiting vessel license under § 660.336. [FR Doc. E8-15833 Filed 7-10-08; 8:45 am] BILLING CODE 3510-22-S 73 134 Friday, July 11, 2008 Notices DEPARTMENT OF AGRICULTURE Forest Service Notice of Proposed New Fee Sites; Federal Lands Recreation Enhancement Act (Title VIII, Pub. L. 108-447) AGENCY: Salmon-Challis National Forest, USDA Forest Service. ACTION: Notice of Proposed New Fee Sites. SUMMARY: The Salmon-Challis National Forest is planning to charge fees at eleven recreation sites. All sites have recently been reconstructed or amenities are being added to improve services and experiences. Fees are assessed based on the level of amenities and services provided, cost of operation and maintenance, market assessment, and public comment. The fees listed are only proposed and will be determined upon further analysis and public comment. Funds from fees would be used for the continued operation and maintenance of these recreation sites. Custer #1, Flat Rock Extension and Blind Creek Campgrounds are currently fee free sites. Improvements have been made including designating campsites, installing fire rings, picnic tables and new toilets in 2007. Improvements will address sanitation and safety concerns, and improve deteriorating resource conditions and recreation experiences. Mosquito Flat Reservoir, Mill Creek (Lost River RD), Broad Canyon, Lake Creek, Banner Creek, Mount Borah, Bench Creek and Big Eightmile campgrounds contain the necessary site amenities to be eligible for fee collection. A financial analysis is being completed to determine fee rates. The proposed fee to help maintain these sites would range between $5 and $10 a campsite. DATES: New fees would begin after April 2009 and are contingent upon completion of certain improvements. ADDRESSES: Forest Supervisor, Salmon-Challis National Forest, 1206 South Challis Street, Salmon, Idaho 83467. FOR FURTHER INFORMATION CONTACT: Patricia Callaghan, Recreation Planner, 208-756-5115. Information about proposed fee changes can also be found on the Salmon-Challis National Forest Web site: *http://www.fs.fcd.us/r4/sc/recreationlfeedemo/index.shtml.* SUPPLEMENTARY INFORMATION: The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six month advance notice in the **Federal Register** whenever new recreation fee areas are established. Once public involvement is complete, these new fees will be reviewed by a Recreation Resource Advisory Committee prior to a final decision and implementation. Dated: July 1, 2008. Larry A. Svalberg, Operations Staff Officer. [FR Doc. E8-15553 Filed 7-10-08; 8:45 am] BILLING CODE 3410-11-M COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Additions and Deletion AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Additions to and Deletion from the Procurement List. SUMMARY: This action adds to the Procurement List a product and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes from the Procurement List a service previously furnished by such agencies. DATES: *Effective Date:* August 10, 2008. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259. FOR FURTHER INFORMATION CONTACT: Kimberly M. Zeich, Telephone:
(703)603-7740, Fax:
(703)603-0655, or e-mail *CMTEFedReg@jwod.gov.* SUPPLEMENTARY INFORMATION: Additions On April 25, May 2, May 9 and May 16, 2008, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (73 FR 22324; 24219; 26363; 28429) of proposed additions to the Procurement List. After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the product and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the product and services to the Government. 2. The action will result in authorizing small entities to furnish the product and services to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the product and services proposed for addition to the Procurement List. End of Certification Accordingly, the following product and services are added to the Procurement List: Product Cap, Garrison, Unisex, U.S. Navy NSN: 8405-01-539-5868—Size 6 3/8 NSN: 8405-01-539-5869—Size 6 1/2 NSN: 8405-01-539-5873—Size 6 5/8 NSN: 8405-01-539-5887—Size 6 3/4 NSN: 8405-01-539-5888—Size 6 7/8 NSN: 8405-01-539-5889—Size 7 NSN: 8405-01-539-5891—Size 7 1/8 NSN: 8405-01-539-5892—Size 7 1/4 NSN: 8405-01-539-5894—Size 7 3/8 NSN: 8405-01-539-5895—Size 7 1/2 NSN: 8405-01-539-5897—Size 7 5/8 NSN: 8405-01-539-5900—Size 7 3/4 NSN: 8405-01-539-5934—Size 7 7/8 NSN: 8405-01-539-5937—Size 8 NSN: 8405-01-539-5939—Size 8 1/8 NSN: 8405-01-539-5962—Size 8 1/4 NSN: 8405-01-539-5969—Size 8 3/8 NSN: 8405-01-539-6335—Size 8 1/2 *NPA:* Goodwill Industries of South Florida, Inc., Miami, FL. *Coverage:* C-List for 25% of the requirement of the Defense Supply Center Philadelphia, Philadelphia, PA. *Contracting Activity:* Defense Supply Center Philadelphia, Philadelphia, PA. Services *Service Type/Location:* Custodial & Grounds Maintenance. U.S. Federal Building and Courthouse—St. Thomas, 5500 Veterans Drive, St. Thomas, U.S. Virgin Islands. *Service Type/Location:* Custodial Services. Louis Munoz Marin International Airport, TSA Occupied Spaces, Carolina, PR. *Service Type/Location:* Custodial Services. Social Security Administration Building, Plaza Sierra Cayey, Building PR3871ZZ, Cayey, PR. *NPA:* The Corporate Source, Inc., New York, NY. *Contracting Activity:* General Services Administration, Caribbean Property Management Center, Hato Rey, PR. *Service Type/Location:* Custodial Services. U.S. Army Reserve Center, 400 Wyoming Blvd NE., Albuquerque, NM. *NPA:* Adelante Development Center, Inc., Albuquerque, NM. *Contracting Activity:* 90th Regional Readiness Command, North Little Rock, AR. *Service Type/Location:* Mailroom Operations. Fort Stewart, 1042 William H. Wilson Avenue, Fort Stewart, GA. *NPA:* Abilities, Inc. of Florida, Clearwater, FL. *Contracting Activity:* Army Contracting Agency, Directorate of Contracting, Fort Stewart, GA. Deletion On May 9, 2008, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (73 FR 26362) of proposed deletions to the Procurement List. After consideration of the relevant matter presented, the Committee has determined that the service listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4. Regulatory Flexibility Act Certification I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were: 1. The action should not result in additional reporting, recordkeeping or other compliance requirements for small entities. 2. The action may result in authorizing small entities to furnish the service to the Government. 3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service deleted from the Procurement List. End of Certification Accordingly, the following service is deleted from the Procurement List: Service *Service Type/Location:* Janitorial/Custodial. Veterans Affairs Medical Center, Seattle, WA. *NPA:* Seattle Mental Health Institute, Inc., Seattle, WA. *Contracting Activity:* Department of Veterans Affairs, Washington, DC. Kimberly M. Zeich, Director, Program Operations. [FR Doc. E8-15781 Filed 7-10-08; 8:45 am] BILLING CODE 6353-01-P DEPARTMENT OF COMMERCE Bureau of Industry and Security Sensors and Instrumentation Technical Advisory Committee; Notice of Partially Closed Meeting The Sensors and Instrumentation Technical Advisory Committee (SITAC) will meet on July 29, 2008, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to sensors and instrumentation equipment and technology. Agenda Public Session 1. Welcome and Introductions. 2. Remarks from Bureau of Industry and Security Management. 3. Industry Presentations. 4. New Business. Closed Session 5. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at *Yspringer@bis.doc.gov* no later than July 22, 2008. A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to the Committee members, the Committee suggests that the materials be forwarded before the meeting to Ms. Springer. The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on June 30, 2008 pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d)), that the portion of this meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public. For more information contact Yvette Springer on
(202)482-2813. Dated: July 8, 2008. Yvette Springer, Committee Liaison Officer. [FR Doc. E8-15870 Filed 7-10-08; 8:45 am] BILLING CODE 3510-JT-P DEPARTMENT OF COMMERCE International Trade Administration A-570-848 Freshwater Crawfish Tail Meat from the People's Republic of China: Notice of Amended Final Results of Administrative Review Pursuant to Final Court Decision AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: July 11, 2008. FOR FURTHER INFORMATION CONTACT: Alex Villanueva, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: 202- 482-3208. SUPPLEMENTARY INFORMATION: Background This matter arose from a challenge to the results in the Department of Commerce's (the “Department”) *Notice of Final Results of Antidumping Duty Administrative Review, and Final Partial Rescission of Antidumping Duty Administrative Review of Freshwater Crawfish Tail Meat from the People's Republic of China* , 67 FR 19546 (April 22, 2002) (“ *Final Results* ”) and accompanying *Issues and Decision Memorandum (“Memo”)* , covering the period of review (“POR”), September 1, 1999 August 31, 2000. Following publication of the *Final Results* , Fujian Pelagic Fishery Group Co. (“Fujian”) and Pacific Coast Fishery Corp. (“Pacific Coast”), filed a lawsuit with the United States Court of International Trade (“CIT”) challenging the Department's Final Results. In the *Final Results* , the Department determined that Fujian and Pacific Coast were not affiliated pursuant to section 771(33) of the Tariff Act of 1930, as amended (“the Act”). *See Memo* at Comment 18. Fujian and Pacific Coast challenged the Department's determination and the CIT affirmed the Department's determination that Fujian and Pacific Coast were not affiliated parties because “Fujian had not made an investment, whether in cash or in the form of a promissory note, in Pacific Coast” and because “Fujian did not exercise control over Pacific Coast.” *See Crawfish Processors Alliance, et al. v. United States* , 343 F. Supp. 2d 1242, 1269 (CIT 2004). Fujian and Pacific Coast timely appealed the CIT's decision with the United States Court of Appeals for the Federal Circuit (“CAFC”). The only issue considered on appeal was whether Fujian and Pacific Coast were affiliated parties pursuant to section 771(33)(E) of the Act. The CAFC reversed the CIT's affirmance of the Department's determination that Fujian and Pacific Coast were not affiliated because section 771(33)(E) of the Act does not require “proof of full payment in cash or merchandise during the review period to show affiliation” and that Fujian and Pacific Coast “have presented sufficient evidence to show that Fujian directly or indirectly owns at least 5% of Pacific Coast's shares.” *See Crawfish Processors Alliance, et al. v. United States* , 477 F.3d 1375, 1384 (Fed. Cir. 2007). The CAFC remanded the case to the CIT for proceedings consistent with its opinion. Therefore, on October 30, 2007, the CIT directed the Department to recalculate the antidumping duty margin treating Fujian and Pacific Coast as affiliated parties in compliance with the CAFC's decision and mandate. On December 11, 2007, the Department released the draft final results of redetermination for comment. No party submitted comments by the December 20, 2007, deadline. On January 24, 2008, the Department filed its final results of redetermination pursuant to remand with the CIT. *See Final Results of Redetermination Pursuant to Court Remand* , Court No. 02-00376 (January 24, 2008) (“ *Final Redetermination* ”), found at http://ia.ita.doc.gov/remands/07-156.pdf. In the remand redetermination, pursuant to the CIT's order, the Department considered Fujian and Pacific Coast affiliated parties under section 771(33)(E) of the Act and recalculated Fujian's dumping margin using Pacific Coast's CEP sales data. On March 5, 2008, the CIT sustained all aspects of the remand redetermination made by the Department pursuant to the CIT's remand of the *Final Results. See Crawfish Processors Alliance v. United States* , Slip Op. 08-27 (March 5, 2008). On March 20, 2008, consistent with the decision in *Timken Co. v. United States* , 893 F.2d 337 (Fed. Cir. 1990), the Department notified the public that the CIT's decision was not in harmony with the Department's final results. *See Freshwater Crawfish Tail Meat from the People's Republic of China: Notice of Court Decision Not In Harmony With Final Results of Administrative Review* , 73 FR 14960 (March 20, 2008). No party appealed the CIT's decision. As there is now a final and conclusive court decision in this case, we are amending our *Final Results* . Amended Final Results As the litigation in this case has concluded, the Department is amending the *Final Results* to reflect the results of our remand determination. The revised dumping margin in the amended final results is as follows: Exporter Margin Fujian 60.83% The Department will instruct U.S. Customs and Border Protection (“CBP”) to liquidate entries of freshwater crawfish tail meat from the People's Republic of China during the review period at the assessment rate the Department calculated for the final results of review as amended. We intend to issue the assessment instructions to CBP 15 days after the date of publication of these amended final results of review. This notice is published in accordance with sections 751(a)(1) and 777(i) of the Act. Dated: July 3, 2008. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E8-15811 Filed 7-10-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration A-351-838 Certain Frozen Warmwater Shrimp from Brazil: Final Results and Partial Rescission of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On March 6, 2008, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from Brazil. This review covers 15 producers/exporters of the subject merchandise to the United States. The period of review
(POR)is February 1, 2006, through January 31, 2007. We are rescinding the review with respect to one company which made no shipments of the subject merchandise during the POR. Based on our analysis of the comments received, we have made certain changes to the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.” EFFECTIVE DATE: July 11, 2008. FOR FURTHER INFORMATION CONTACT: Kate Johnson or Rebecca Trainor, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone
(202)482-4929 and
(202)482-4007, respectively. SUPPLEMENTARY INFORMATION: Background This review covers 15 producers/exporters. 1 The respondents which the Department selected for individual review are Amazonas Industrias Alimenticias S.A. (“AMASA”) and Comercio de Pescado Aracatiense Ltda. (“Compescal”). The respondents which were not selected for individual review are listed in the “Final Results of Review” section of this notice. 1 This figure does not include those companies for which the Department is rescinding the administrative review. On March 6, 2008, the Department published in the **Federal Register** the preliminary results of administrative review of the antidumping duty order on shrimp from Brazil. * See Certain Frozen Warmwater Shrimp from Brazil: Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review * , 73 FR 12081 (March 6, 2008) (Preliminary Results). We invited parties to comment on our preliminary results of review. On April 7, 2008, AMASA requested a public hearing. On April 14, 2008, we received a case brief from the Louisiana Shrimp Association, an interested party in this proceeding. On April 16, 2008, we received case briefs from AMASA and the petitioner ( *i.e.* , the Ad Hoc Shrimp Trade Action Committee). On April 28, we received rebuttal briefs from AMASA and the petitioner. On May 2, 2008, AMASA withdrew its request for a hearing. The Department has conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act). Scope of the Order The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off, 2 deveined or not deveined, cooked or raw, or otherwise processed in frozen form. 2 “Tails” in this context means the tail fan, which includes the telson and the uropods. The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size. The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp ( *Penaeus vannemei* ), banana prawn ( *Penaeus merguiensis* ), fleshy prawn ( *Penaeus chinensis* ), giant river prawn ( *Macrobrachium rosenbergii* ), giant tiger prawn ( *Penaeus monodon* ), redspotted shrimp ( *Penaeus brasiliensis* ), southern brown shrimp ( *Penaeus subtilis* ), southern pink shrimp ( *Penaeus notialis* ), southern rough shrimp ( *Trachypenaeus curvirostris* ), southern white shrimp ( *Penaeus schmitti* ), blue shrimp ( *Penaeus stylirostris* ), western white shrimp ( *Penaeus occidentalis* ), and Indian white prawn ( *Penaeus indicus* ). Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order. Excluded from the scope are: 1) breaded shrimp and prawns (HTSUS subheading 1605.20.10.20); 2) shrimp and prawns generally classified in the *Pandalidae* family and commonly referred to as coldwater shrimp, in any state of processing; 3) fresh shrimp and prawns whether shell-on or peeled (HTSUS subheadings 0306.23.00.20 and 0306.23.00.40); 4) shrimp and prawns in prepared meals (HTSUS subheading 1605.20.05.10); 5) dried shrimp and prawns; 6) canned warmwater shrimp and prawns (HTSUS subheading 1605.20.10.40); 7) certain dusted shrimp; and 8) certain battered shrimp. Dusted shrimp is a shrimp-based product: 1) that is produced from fresh (or thawed-from-frozen) and peeled shrimp; 2) to which a “dusting” layer of rice or wheat flour of at least 95 percent purity has been applied; 3) with the entire surface of the shrimp flesh thoroughly and evenly coated with the flour; 4) with the non-shrimp content of the end product constituting between four and 10 percent of the product's total weight after being dusted, but prior to being frozen; and 5) that is subjected to IQF freezing immediately after application of the dusting layer. Battered shrimp is a shrimp-based product that, when dusted in accordance with the definition of dusting above, is coated with a wet viscous layer containing egg and/or milk, and par-fried. The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive. Period of Review The POR is February 1, 2006, through January 31, 2007. Partial Rescission of Review In the *Preliminary Results* , we preliminarily rescinded this review with respect to Qualimar Comercio Imp. E Exp. Ltda. (“Qualimar”). On September 13, 2007, Qualimar submitted a quantity and value (“Q&V”) questionnaire response stating that it had no shipments/exports of subject merchandise to the United States during the POR. Furthermore, data from U.S. Customs and Border Protection (“CBP”) show that Qualimar did not have shipments of subject merchandise during the POR. Accordingly, we are rescinding this review with respect to Qualimar. Successor-In-Interest As discussed in the *Preliminary Results* , on April 18, 2007, Empresa De Armazenagem Frigorifica Ltda. (Empaf) informed the Department that it is now doing business as Netuno Alimentos S.A. (Netuno). 3 On May 9, 2007, in response to the Department's request for additional information, Netuno asserted its view that it is the successor-in-interest to Empaf. Specifically, Netuno stated that there were no changes to Empaf's management, production facilities for the subject merchandise, supplier relationships, or customer base as a result of the change in corporate structure. Based on our analysis of Netuno's May 9, 2007, submission, we preliminarily found that its organizational structure, management, production facilities, supplier relationships, and customers have remained essentially unchanged. We also found that Netuno operates as the same business entity as Empaf with respect to the production and sale of certain frozen warmwater shrimp. Thus, we preliminarily found that Netuno is the successor-in-interest to Empaf, and, as a consequence, its exports of certain frozen warmwater shrimp are subject to the antidumping duty order on shrimp from Brazil. 3 In the original investigation, we found that Empaf and Maricultura Netuno comprised a single entity. *See Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp from Brazil* , 69 FR 76910 (Dec. 23, 2004). Since the *Preliminary Results* , no party to this proceeding has commented on this issue, and we have found no additional information that would compel us to reverse our preliminary finding. Thus, for purposes of these final results, we continue to find that Netuno is the successor-in-interest to Empaf for purposes of determining antidumping duty liability. Facts Available In the *Preliminary Results* , we determined that, in accordance with section 776(a)(2)(A) of the Act, the use of facts available was appropriate as the basis for the dumping margins for the following producer/exporters: Acarau Pesca Distr. de Pescado Imp. E Exp. Ltda., Aquacultura Fortaleza Aquafort SA, Compescal, ITA Fish - S.W.F. Importacao e Exportacao Ltda., Orion Pesca Ltda., Santa Lavinia Comercio e Exportacao Ltda., Secom Aquicultura Comercio E Industria SA, and Tecmares Maricultura Ltda. *See Preliminary Results* at 12083. Section 776(a) of the Act provides that the Department will apply “facts otherwise available” if, *inter alia* , necessary information is not available on the record or an interested party: 1) withholds information that has been requested by the Department; 2) fails to provide such information within the deadlines established, or in the form or manner requested by the Department; 3) significantly impedes a proceeding; or 4) provides such information, but the information cannot be verified. In April 2007, the Department requested that all companies subject to review respond to the Department's Q&V questionnaire for purposes of mandatory respondent selection. The original deadline to file a response was April 23, 2007. Because numerous companies did not respond to this initial request for information, in May and June 2007, we issued letters to these companies affording them a second and third opportunity to submit a response to the Q&V questionnaire. The above-mentioned companies again failed to respond to our requests for Q&V data. By failing to respond to the Department's Q&V questionnaire, these companies withheld requested information and significantly impeded the proceeding. Thus, pursuant to sections 776(a)(2)(A) and
(C)of the Act, we preliminarily found that the use of total facts available was warranted. Consistent with the *Preliminary Results* , the Department finds that the use of total facts available for Acarau Pesca Distr. de Pescado Imp. E Exp. Ltda., Aquacultura Fortaleza Aquafort SA, Compescal, ITA Fish - S.W.F. Importacao e Exportacao Ltda., Orion Pesca Ltda., Santa Lavinia Comercio e Exportacao Ltda., Secom Aquicultura Comercio E Industria SA, and Tecmares Maricultura Ltda. is appropriate for purposes of the final results, pursuant to sections 776(a)(2)(A) and
(C)of the Act. Application of Adverse Facts Available In selecting from among the facts otherwise available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that an interested party failed to cooperate by not acting to the best of its ability to comply with the request for information. *See* , *e.g.* , *Notice of Final Results of Antidumping Duty Administrative Review: Stainless Steel Bar from India* , 70 FR 54023, 54025-26 (Sept. 13, 2005); *see also Notice of Final Determination of Sales at Less Than Fair Value and Final Negative Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil* , 67 FR 55792, 55794-96 (Aug. 30, 2002). Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” *See* Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, Vol. 1, at 870
(1994)(SAA). Furthermore, “affirmative evidence of bad faith on the part of a respondent is not required before the Department may make an adverse inference.” *See Antidumping Duties; Countervailing Duties; Final Rule* , 62 FR 27296, 27340 (May 19, 1997). *See also* , *Nippon Steel Corp. v. United States* , 337 F.3d 1373, 1382 (Fed. Cir. 2003) ( *Nippon* ). We find that Acarau Pesca Distr. de Pescado Imp. E Exp. Ltda., Aquacultura Fortaleza Aquafort SA, Compescal, ITA Fish - S.W.F. Importacao e Exportacao Ltda., Orion Pesca Ltda., Santa Lavinia Comercio e Exportacao Ltda., Secom Aquicultura Comercio E Industria SA, and Tecmares Maricultura Ltda. did not act to the best of their abilities in this proceeding, within the meaning of section 776(b) of the Act, because they failed to respond to the Department's requests for information. Therefore, an adverse inference is warranted in selecting the facts otherwise available. *See Nippon* , 337 F. 3d at 1382-83. In the *Preliminary Results* , we assigned to the uncooperative companies an adverse facts available
(AFA)rate of 68.15 percent, the preliminary margin calculated for AMASA, which, at the time, was the highest rate determined for any respondent in any segment of the proceeding (i.e., the less-than-fair-value
(LTFV)investigation, the first administrative review, or the instant review). However, given the changes made to the margin calculations for AMASA since the *Preliminary Results* , 4 the rate assigned to AMASA for purposes of these final results is 48.60 percent. Therefore, in accordance with Department policy to assign the highest rate on record of the proceeding as AFA, for the final results, we have applied an AFA margin of 67.80 percent from the LTFV investigation. The Court of International Trade
(CIT)and the Court of Appeals for the Federal Circuit have consistently upheld the Department's practice in this regard. *See Rhone Poulenc, Inc. v. United States* , 899 F.2d 1185, 1190 (Fed. Cir. 1990); *NSK Ltd. v. United States* , 346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding a 73.55 percent total AFA rate, the highest available dumping margin from a different respondent in an LTFV investigation); *see also Kompass Food Trading Int'l v. United States* , 24 CIT 678, 680
(2000)(upholding a 51.16 percent total AFA rate, the highest available dumping margin from a different, fully cooperative respondent) and *Shanghai Taoen Int'l Tading Co., Ltd. v. United States* , 360 F Supp 2d 1339, 1348 (CIT 2005) (upholding a 223.01 percent total AFA rate, the highest available dumping margin from a different respondent in a previous administrative review). 4 *See* Issues and Decision Memorandum (Decision Memo) accompanying this notice for further discussion. Section 776(b) of the Act provides that the Department may use as AFA information derived from: 1) the petition; 2) the final determination in the investigation; 3) any previous review; or 4) any other information placed on the record. The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the AFA rule to induce respondents to provide the Department with complete and accurate information in a timely manner.” *See e.g.* , *Certain Steel Concrete Reinforcing Bars from Turkey; Final Results and Rescission of Antidumping Duty Administrative Review in Part* , 71 FR 65082, 65084 (November 7, 2006). In selecting an appropriate AFA rate, the Department considered: 1) the rates alleged in the petition ( *see Notice of Initiation of Antidumping Duty Investigations: Certain Frozen and Canned Warmwater Shrimp From Brazil, Ecuador, India, Thailand, the People's Republic of China and the Socialist Republic of Vietnam* , 69 FR 3876, 3879 (January 27, 2004)); 2) the rates calculated in the final determination of the LTFV investigation, as amended, which ranged from 4.97 to 67.80 percent ( *see Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Brazil* , 70 FR 5143 (February 1, 2005) ( *LTFV Amended Final Determination and Order* )); 3) the rates calculated in the final results of the 2004-2006 administrative review, which ranged from 4.62 to 15.41 percent ( * see Certain Frozen Warmwater Shrimp from Brazil: Final Results and Partial Rescission of Antidumping Duty Administrative Review * , 72 FR 52061 (September 12, 2007) ( *2004-2006 Administrative Review* ); and 4) the rate calculated for AMASA in the final results of this administrative review. As discussed further below, we find that the rates alleged in the petition no longer have probative value for purposes of this review. In addition, we find that the rate calculated for AMASA in this review, as well as the rates calculated in the 2004-2006 administrative review, are not sufficiently high as to effectuate the purpose of the facts available rule ( *i.e.* , we do not find that these rates are high enough to encourage participation in future segments of this proceeding in accordance with section 776(b) of the Act). Therefore, we have assigned a rate of 67.80 percent as AFA, which is the highest margin determined for any respondent in any segment of the proceeding ( *i.e.* , the LTFV investigation). 5 We consider the 67.80-percent rate to be sufficiently high so as to encourage participation in future segments of this proceeding. 5 This margin was based on the rate we calculated for respondent Norte Pesca S.A. in the preliminary determination of the LTFV investigation, based on information it submitted in its questionnaire responses. Although this company withdrew from the investigation after the preliminary determination, this rate was used as the AFA rate in the final determination. *See LTFV Amended Final Determination and Order* . Corroboration Section 776(c) of the Act requires that the Department corroborate, to the extent practicable, secondary information used as facts available from independent sources reasonably at its disposal. The Department's regulations provide that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value. *See* 19 CFR 351.308(d); *see also* SAA. The rates alleged in the petition and information from prior segments of the proceeding constitute secondary information and, to the extent practicable, the Department will examine the reliability and relevance of the information to be used. For purposes of the final results, we did not use either of the two highest of the three petition rates ( *i.e.* , 320 percent and 349 percent) because these rates did not corroborate with independent information reasonably at our disposal, *i.e.* , the transaction-specific margins in the current administrative review. We did not use the remaining petition rate (i.e., 32 percent) because it was lower than the selected AFA rate, and as such would not accomplish the objectives of AFA, stated above. Moreover, we have an alternative that we find to be sufficiently adverse to effectuate the purpose of the AFA provision of the statute. The reliability of the selected AFA rate was determined by the calculation of the margin for Norte Pesca, as published in the *LTFV Amended Final Determination and Order* . With respect to corroboration of a rate calculated in a segment of a proceeding, we note that, unlike other types of information, such as input costs or selling expenses, there are no independent sources from which the Department can derive dumping margins. The only source for calculated dumping margins is administrative determinations. Thus, in an administrative review, if the Department chooses as total AFA a calculated dumping margin from the current or a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period. *See, e.g* ., *Anhydrous Sodium Metasilicate from France: Preliminary Results of Antidumping Duty Administrative Review* , 68 FR 44283, 44284 (July 28, 2003), and *Anhydrous Sodium Metasilicate from France: Final Results of Antidumping Duty Administrative Review* , 68 FR 60080 (October 21, 2003) (unchanged in final). Therefore, given that we are using the highest margin calculated for any respondent in any segment of the proceeding, it is not necessary to question the reliability of this rate. The Department has received no information to date that warrants revisiting the issue of the reliability of the rate calculation itself. However, because none of the following companies ( *i.e.* , Acarau Pesca Distr. de Pescado Imp. E Exp. Ltda., Aquacultura Fortaleza Aquafort SA, ITA Fish - S.W.F. Importacao e Exportacao Ltda., Orion Pesca Ltda., Santa Lavinia Comercio e Exportacao Ltda., Secom Aquicultura Comercio E Industria SA, and Tecmares Maricultura Ltda.) submitted information to the Department or participated in a previous segment of this proceeding, we do not have information specific to these companies to consider in determining whether the 67.80-percent margin is relevant to each of them or to the current POR. Therefore, to determine whether the 67.80-percent margin is relevant in this administrative review, we compared this rate to the transaction-specific rates calculated for AMASA in this review. With respect to Compescal, which participated in the 2004-2006 administrative review, we also compared the AFA rate to the transaction-specific rates calculated for Compescal in the previous review. Based on these comparisons, we find that the selected AFA rate is relevant because it fell within the range of, or approximated, the individual transaction margins calculated for AMASA in this review and for Compescal in the previous review. *See* Memorandum to The File from Kate Johnson and Rebecca Trainor entitled “Corroboration of Adverse Facts Available Rate for the Final Results in the 2006-2007 Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from Brazil,” dated July 3, 2008; *see also 2004-2006 Administrative Review and Notice of Preliminary Results of Antidumping Duty Administrative Review; Partial Rescission and Postponement of Final Results: Certain Softwood Lumber Products from Canada* , 71 FR 33964, 33968 (June 12, 2006). The Department also considers information reasonably at its disposal to determine whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department may disregard the margin and determine an appropriate margin. *See* , *e.g.* , *Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review* , 61 FR 6812, 6814 (February 22, 1996) (where the Department disregarded the highest calculated margin as AFA because the margin was based on a company's uncharacteristic business expense resulting in an unusually high margin). For the instant review, we examined whether any information on the record would discredit the selected rate as reasonable facts available and have found none. Because we did not find evidence indicating that the margin selected as AFA in this review is not appropriate, we have determined that the highest margin calculated for any respondent in any segment of the proceeding ( *i.e.* , 67.80 percent) is appropriate to use as AFA, and are assigning this rate to Acarau Pesca Distr. de Pescado Imp. E Exp. Ltda., Aquacultura Fortaleza Aquafort SA, Compescal, ITA Fish - S.W.F. Importacao e Exportacao Ltda., Orion Pesca Ltda., Santa Lavinia Comercio e Exportacao Ltda., Secom Aquicultura Comercio E Industria SA, and Tecmares Maricultura Ltda. in the final results of this review. Cost of Production As discussed in the *Preliminary Results* , we conducted an investigation to determine whether AMASA made home market sales of the foreign like product during the POR at prices below the cost of production
(COP)within the meaning of section 773(b)(1) of the Act. We performed the cost test for these final results following the same methodology as in the *Preliminary Results* , except as discussed in the Decision Memo. For AMASA, we found that 20 percent or more of comparison market sales of a given product during the reporting period were at prices less than the weighted-average COP for this period. Thus, we determined that these below-cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade. *See* sections 773(b)(2)(B) -
(D)of the Act. Therefore, for purposes of these final results, we found that AMASA made below-cost sales not in the ordinary course of trade during the POR. Consequently, we disregarded these sales and used the remaining sales as the basis for determining normal value pursuant to section 773(b)(1) of the Act. Analysis of Comments Received All issues raised in the case briefs by parties to this administrative review, and to which we have responded, are listed in the Appendix to this notice and addressed in the Decision Memo, which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room 1117, of the main Department building. In addition, a complete version of the Decision Memo can be accessed directly on the Web at *http://ia.ita.doc.gov/frn/* . The paper copy and electronic version of the Decision Memo are identical in content. Changes Since the Preliminary Results Based on our analysis of the comments received, we have made certain changes in the margin calculations for AMASA. These changes are discussed in the relevant sections of the Decision Memo. Final Results of Review We determine that the following weighted-average margin percentages exist for the period February 1, 2006, through January 31, 2007: Manufacturer/Exporter Percent Margin Amazonas Industrias Alimenticias S.A. (“AMASA”) 48.60 Comercio de Pescado Aracatiense Ltda. (“Compescal”) 67.80 Review-Specific Average Rate Applicable to the Following Companies: Manufacturer/Exporter Percent Margin Aquatica Maricultura do Brasil Ltda./Aquafeed do Brasil Ltda. 48.60 Central de Industrializacao e Distribuicao de Alimentos Ltda. (“CIDA”) and Cia Exportadora de Produtos do Mar (“Produmar”) 48.60 Ipesca - Industria de Frio e Pesca S.A. 48.60 Intermarine Servicos Nauticos Ltda. 48.60 JK Pesca Ltda. 48.60 Pesqueira Maguary Ltda. 48.60 AFA Rate Applicable to the Following Companies: Manufacturer/Exporter Percent Margin Acarau Pesca Distr. de Pescado Imp. e Exp. Ltda. 67.80 Aquacultura Fortaleza Aquafort SA 67.80 ITA Fish - S.W.F. Importacao e Exportacao Ltda. 67.80 Orion Pesca Ltda. 67.80 Santa Lavinia Comercio e Exportacao Ltda. 67.80 Secom Aquicultura Comercio E Industria SA 67.80 Tecmares Maricultura Ltda. 67.80 Assessment The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Because AMASA did not report the actual entered value of its U.S. sales, we have calculated importer-specific per-unit duty assessment rates by aggregating the total amount of antidumping duties calculated for the examined sales and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates are *de minimis* , in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we have calculated importer-specific *ad valorem* ratios based on the estimated entered value. For the responsive companies which were not selected for individual review, we have calculated an assessment rate based on the weighted average of the cash deposit rates calculated for the companies selected for individual review excluding any which are *de minimis* or determined entirely on AFA. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above *de minimis* ( *i.e.* , at or above 0.50 percent). Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is *de minimis* ( *i.e.* , less than 0.50 percent). *See* 19 CFR 351.106(c)(1). The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review. The Department clarified its “automatic assessment” regulation on May 6, 2003. *See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties* , 68 FR 23954 (May 6, 2003) ( *Assessment Policy Notice* ). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know that the merchandise they sold to the intermediary ( *e.g.* , a reseller, trading company, or exporter) was destined for the United States. This clarification will also apply to POR entries of subject merchandise produced by companies for which we are rescinding the review based on certifications of no shipments, because these companies certified that they made no POR shipments of subject merchandise for which they had knowledge of U.S. destination. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate established in the LTFV investigation if there is no rate for the intermediary involved in the transaction. *See Assessment Policy Notice* for a full discussion of this clarification. Cash Deposit Requirements The following deposit requirements will be effective for all shipments of shrimp from Brazil entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: 1) the cash deposit rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent, *de minimis* within the meaning of 19 CFR 351.106(c)(1), the cash deposit will be zero; 2) for previously investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; 3) if the exporter is not a firm covered in this review, or the LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and 4) the cash deposit rate for all other manufacturers or exporters will continue to be 7.05 percent, the all-others rate established in the LTFV investigation. These deposit requirements shall remain in effect until publication of the final results of the next administrative review. Notification to Importers This notice serves as a final reminder to importers of their responsibility, under 19 CFR 351.402(f)(2), to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties. Notification to Interested Parties This notice serves as the only reminder to parties subject to administrative protective order
(APO)of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation. We are issuing and publishing these final results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5). Dated: July 3, 2008. David M. Spooner, Assistant Secretary for Import Administration. Appendix - Issues in Decision Memorandum 1. Selection of Adverse Facts Available Rate 2. Consideration of Grade as a Matching Criterion 3. Date of Sale for Sales to Kenkoh 4. Sales to Employees 5. Calculation of Variable and Total Costs of Manufacturing 6. Corrections Presented at Cost Verification 7. Adjustments to Costs for Reconciling Differences 8. Adjustments to AMASA's General and Administrative Expense Ratio 9. Financial Expense Ratio [FR Doc. E8-15827 Filed 7-10-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration A-331-802 Certain Frozen Warmwater Shrimp from Ecuador: Final Results and Partial Rescission of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On March 6, 2008, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from Ecuador. This review covers 43 producers/exporters of the subject merchandise to the United States. The period of review
(POR)is February 1, 2006, through January 31, 2007. We are rescinding the review with respect to one company because this company made no shipments of the subject merchandise during the POR. Based on our analysis of the comments received, we have made certain changes in the margin calculations for Promarisco S.A., one of the producer/exporters selected for individual review. Therefore, the final results for Promarisco S.A. differ from the preliminary results. We have made no changes to the margin calculation of OceanInvest S.A., the other producer/exporter selected for individual review. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.” EFFECTIVE DATE: July 11, 2008. FOR FURTHER INFORMATION CONTACT: David Goldberger or Gemal Brangman, AD/CVD Operations, Office 2, Import Administration-Room 1117, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-4136 or
(202)482-3773, respectively. SUPPLEMENTARY INFORMATION: Background This review covers 43 producers/exporters. 1 The respondents which the Department selected for individual review are OceanInvest, S.A. (OceanInvest) and Promarisco, S.A. (Promarisco). The respondents which were not selected for individual review are listed in the “Final Results of Review” section of this notice. 1 This figure does not include those companies for which the Department is rescinding the administrative review. In the notice announcing the preliminary results, this figure was incorrectly reported as 45 companies. On March 6, 2008, the Department published in the **Federal Register** the preliminary results of administrative review of the antidumping duty order on shrimp from Ecuador. *See Certain Frozen Warmwater Shrimp from Ecuador: Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review* , 73 FR 12115 (March 6, 2008) ( *Preliminary Results* ). We invited parties to comment on those preliminary results. In April 2008, we received case briefs from the petitioner (the Ad Hoc Shrimp Trade Action Committee), the Louisiana Shrimp Alliance (an interested party in the proceeding), OceanInvest, and Promarisco, and rebuttal briefs from the petitioner, OceanInvest, and Promarisco. The Department has conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act). Scope of the Order The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off, 2 deveined or not deveined, cooked or raw, or otherwise processed in frozen form. 2 “Tails” in this context means the tail fan, which includes the telson and the uropods. The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size. The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp ( *Penaeus vannemei* ), banana prawn ( *Penaeus merguiensis* ), fleshy prawn ( *Penaeus chinensis* ), giant river prawn ( *Macrobrachium rosenbergii* ), giant tiger prawn ( *Penaeus monodon* ), redspotted shrimp ( *Penaeus brasiliensis* ), southern brown shrimp ( *Penaeus subtilis* ), southern pink shrimp ( *Penaeus notialis* ), southern rough shrimp ( *Trachypenaeus curvirostris* ), southern white shrimp ( *Penaeus schmitti* ), blue shrimp ( *Penaeus stylirostris* ), western white shrimp ( *Penaeus occidentalis* ), and Indian white prawn ( *Penaeus indicus* ). Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order. Excluded from the scope are: 1) breaded shrimp and prawns (HTSUS subheading 1605.20.10.20); 2) shrimp and prawns generally classified in the *Pandalidae* family and commonly referred to as coldwater shrimp, in any state of processing; 3) fresh shrimp and prawns whether shell-on or peeled (HTSUS subheadings 0306.23.00.20 and 0306.23.00.40); 4) shrimp and prawns in prepared meals (HTSUS subheading 1605.20.05.10); 5) dried shrimp and prawns; 6) canned warmwater shrimp and prawns (HTSUS subheading 1605.20.10.40); 7) certain dusted shrimp; and 8) certain battered shrimp. Dusted shrimp is a shrimp-based product: 1) that is produced from fresh (or thawed-from-frozen) and peeled shrimp; 2) to which a “dusting” layer of rice or wheat flour of at least 95 percent purity has been applied; 3) with the entire surface of the shrimp flesh thoroughly and evenly coated with the flour; 4) with the non-shrimp content of the end product constituting between four and 10 percent of the product's total weight after being dusted, but prior to being frozen; and 5) that is subjected to IQF freezing immediately after application of the dusting layer. Battered shrimp is a shrimp-based product that, when dusted in accordance with the definition of dusting above, is coated with a wet viscous layer containing egg and/or milk, and par-fried. The products covered by this order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive. Period of Review The POR is February 1, 2006, through January 31, 2007. Partial Rescission of Review As discussed in the *Preliminary Results* , the Department received a no-shipment response from Exportadora del Oceano Pacifico OCEANPAC (Oceanpac) for which there appeared to be U.S. customs entries of subject merchandise. We requested data on the relevant entries from U.S. Customs and Border Protection
(CBP)and determined that the entries were not reportable transactions for Oceanpac. *See* Memorandum to the File entitled “Reconciliation of Respondent No Shipment Statements to CBP Data,” dated February 6, 2008. Under these circumstances, we determine that Oceanpac satisfies the requirement under 19 CFR 351.213(d)(3) that it did not have “entries, exports, or sales of the subject merchandise,” and, consistent with the Department's practice, we are rescinding the review with respect to Oceanpac. *See* , *e.g.* , *Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination to Revoke in Part* , 70 FR 67665, 67666 (November 8, 2005). Cost of Production As discussed in the *Preliminary Results* , we conducted a review to determine whether OceanInvest and Promarisco made third country sales of the foreign like product during the POR at prices below their costs of production
(COP)within the meaning of section 773(b)(1) of the Act. For Promarisco, we performed the cost test for these final results following the same methodology as in the *Preliminary Results* , except as discussed in the decision memorandum accompanying this notice (the Decision Memo). For OceanInvest, we made no changes to the *Preliminary Results* calculation. We found 20 percent or more of each respondent's sales of a given product during the reporting period were at prices less than the weighted-average COP for this period. Thus, we determined that these below-cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade. *See* Sections 773(b)(2)(B) -
(D)of the Act. Therefore, for purposes of these final results, we find that OceanInvest and Promarisco made below-cost sales not in the ordinary course of trade. Consequently, we disregarded these sales for each respondent and used the remaining sales as the basis for determining normal value pursuant to section 773(b)(1) of the Act. Analysis of Comments Received All issues raised in the case briefs by parties to this administrative review, and to which we have responded, are listed in the Appendix to this notice and addressed in the Decision Memo, which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room 1117, of the main Department building. In addition, a complete version of the Decision Memo can be accessed directly on the Web at *http://ia.ita.doc.gov/frn/* . The paper copy and electronic version of the Decision Memo are identical in content. Changes Since the Preliminary Results Based on our analysis of the comments received, we have made certain changes in the margin calculations for Promarisco. These changes are discussed in the relevant sections of the Decision Memo. We have made no changes to the margin calculations for OceanInvest. Final Results of Review We determine that the following weighted-average margin percentages exist for the period February 1, 2006, through January 31, 2007: Manufacturer/Exporter Percent Margin OceanInvest, S.A. 0.64 Promarisco, S.A. 0.46 ( *de minimis* ) Review-Specific Average Rate Applicable to the Following Companies: 3 3 This rate is based on the weighted average of the margins calculated for those companies selected for individual review, excluding *de minimis* margins or margins based entirely on adverse facts available (AFA). Manufacturer/Exporter Percent Margin Agrol, S.A. 0.64 Alquimia Marina S.A. 0.64 Comar Cia Ltda 0.64 Dunci S.A. 0.64 El Rosario S.A. 0.64 Empacadora Bilbo Bilbosa 0.64 Empacadora Del Pacifico S.A. 0.64 Empacadora Dufer Cia. Ltda. 0.64 Empacadora Gran Mar S.A.(Empagran) 0.64 Empacadora Nacional 0.64 Empacadora y Exportadora Calvi Cia. Ltda. 0.64 Emprede 0.64 Estar C.A. 0.64 Exporklore, S.A. 0.64 Exportadora Del Oceano Oceanexa C.A. 0.64 Gondi S.A. 0.64 Industria Pesquera Santa Priscila S.A. 0.64 Inepexa S.A. 0.64 Jorge Luis Benitez Lopez 0.64 Karpicorp S.A. 0.64 Luis Loaiza Alvarez 0.64 Mardex Cia. Ltda. 0.64 Mariscos del Ecuador c. l. Marecuador 0.64 Marines C.A. 0.64 Natural Select S.A. 0.64 Negocios Industriales 0.64 Novapesca S.A. 0.64 Oceanmundo S.A. 0.64 Oceanpro 0.64 Operadora y Procesadora de Productos Marinos S.A. (Omarsa) 0.64 Oyerly S.A. 0.64 Pacfish S.A. 0.64 PCC Congelados & Frescos S.A. 0.64 Pescazul S.A. 0.64 Peslasa S.A. 0.64 Phillips Seafood 0.64 Procesadora del Rio Proriosa S.A. 0.64 Promarosa Productos 0.64 Sociedad Nacional de Galapagos C.A. (SONGA) 0.64 Tolyp S.A. 0.64 Transcity S.A. 0.64 Assessment The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Regarding OceanInvest, for those sales where it reported the entered value of its U.S. sales, we have calculated importer-specific *ad valorem* duty assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer. For those sales where OceanInvest did not report the entered value of its U.S. sales, we have calculated customer-specific per-unit duty assessment rates by aggregating the total amount of antidumping duties calculated for the examined sales and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates are *de minimis* , in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we have calculated importer-specific or customer-specific *ad valorem* ratios based on the estimated entered value. Regarding Promarisco, because it reported the entered value of all of its U.S. sales, we have calculated an importer-specific *ad valorem* duty assessment rate based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer. We have calculated a single importer-specific assessment rate for Promarisco, consistent with our practice in the final results of the 2004 - 2006 administrative review ( *see Certain Frozen Warmwater Shrimp from Ecuador: Final Results of Antidumping Duty Administrative Review* , 72 FR 52070 (September 12, 2007)). *See also Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and Singapore: Final Results of the Antidumping Administrative Reviews, Rescission of Administrative Review in part, and Determination Not to Revoke Order in Part* , 68 FR 35623 (June 16, 2003), and accompanying Issues and Decision Memorandum at Comment 9B; and *Notice of Final Results of Antidumping Duty Administrative Review and Notice of Final Results of Antidumping Duty Changed Circumstances Review: Certain Softwood Lumber Products From Canada* , 69 FR 75921 (December 20, 2004), and accompanying Issues and Decision Memorandum at Comment 13. For the responsive companies which were not selected for individual review, we have calculated an assessment rate based on the weighted average of the margin rates calculated for the companies selected for individual review excluding any which are de minimis or determined entirely on AFA. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above *de minimis* ( *i.e.* , at or above 0.50 percent). Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is *de minimis* ( *i.e.* , less than 0.50 percent). *See* 19 CFR 351.106(c)(1). The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review. The Department clarified its “automatic assessment” regulation on May 6, 2003. *See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties* , 68 FR 23954 (May 6, 2003) ( *Assessment Policy Notice* ). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know that the merchandise they sold to the intermediary ( *e.g.* , a reseller, trading company, or exporter) was destined for the United States. This clarification will also apply to POR entries of subject merchandise produced by companies for which we are rescinding the review based on certifications of no shipments, because these companies certified that they made no POR shipments of subject merchandise for which they had knowledge of U.S. destination. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate established in the LTFV investigation if there is no rate for the intermediary involved in the transaction. *See Assessment Policy Notice* for a full discussion of this clarification. Discontinuation of Cash Deposit Requirements On August 15, 2007, in accordance with sections 129(b)(4) and 129(c)(1)(B) of the Uruguay Round Agreements Act (URAA), the U.S. Trade Representative, after consulting with the Department and Congress, directed the Department to implement its determination to revoke the antidumping duty order on certain frozen warmwater shrimp from Ecuador. *See Final Results of the Section 129 Determination of Certain Frozen Warmwater Shrimp from Ecuador* , 72 FR 48257 (August 23, 2007). Accordingly, the antidumping duty order on certain frozen warmwater shrimp from Ecuador was revoked effective August 15, 2007. As a result, we have instructed CBP to discontinue collection of cash deposits of antidumping duties on entries of the subject merchandise. Notification to Importers This notice serves as a final reminder to importers of their responsibility, under 19 CFR 351.402(f)(2), to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties. Notification to Interested Parties This notice serves as the only reminder to parties subject to administrative protective order
(APO)of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation. We are issuing and publishing these final results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: July 3, 2008. David M. Spooner, Assistant Secretary for Import Administration. Appendix - Issues in Decision Memorandum General Comments: *Comment 1:* “Zeroing” Methodology in Administrative Reviews *Comment 2:* Selection of Mandatory Respondents Company-Specific Comments: Promarisco *Comment 3:* Adjustment to Promarisco's Net Financial Expense Ratio *Comment 4:* Use of Entry Date for Determining Promarisco's POR Sales OceanInvest *Comment 5:* Cost Reporting for Certain Value-Added Products *Comment 6:* Acceptance of Billing Adjustment for Certain Third-Country Sales *Comment 7:* Bonus Payment Adjustment Applicable to U.S. Sales [FR Doc. E8-15830 Filed 7-10-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. FOR FURTHER INFORMATION CONTACT: Sheila E. Forbes, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone:
(202)482-4697. Background Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspension of investigation, an interested party, as defined in section 77 1(9) of the Tariff Act of 1930, as amended (the Act), may request, in accordance with section 35 1.213
(2007)of the Department of Commerce (the Department) Regulations, that the Department conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation. *Opportunity to Request a Review:* Not later than the last day of July 2008 1 , interested parties may request administrative review of the following orders, findings, or suspended investigations, with anniversary dates in July for the following periods: 1 Or the next business day, if the deadline falls on a weekend, federal holiday or any other day when the Department is closed. Period Antidumping Duty Proceedings The People's Republic of China: Persulfates, A-570-847 7/1/07-6/30/08 Carbon Steel Butt-Weld Pipe Fittings, A-570-814 7/1/07-6/30/08 Saccharin, A-570-878 7/1/07-6/30/08 Finland: Carboxymethylcellulose, A-405-803 7/1/07-6/30/08 Germany: Stainless Steel Sheet and Strip in Coils, A-428-825 7/1/07-6/30/08 India: Polyethylene Terephthalate
(PET)Film, A-533-824 7/1/07-6/30/08 Iran: In-Shell Pistachios, A-507-502 7/1/07-6/30/08 Italy: Certain Pasta, A-475-818 7/1/07-6/30/08 Stainless Steel Sheet and Strip in Coils, A-475-824 7/1/07-6/30/08 Japan: Clad Steel Plate, A-588-838 7/1/07-6/30/08 Stainless Steel Sheet and Strip in Coils, A-588845 7/1/07-6/30/08 Polyvinyl Alcohol, A-588-861 7/1/07-6/30/08 Mexico: Stainless Steel Sheet and Strip in Coils, A-201-822 7/1/07-6/30/08 Carboxymethylcellulose, A-201-834 7/1/07-6/30/08 Netherlands: Carboxymethylcellulose, A-421-811 7/1/07-6/30/08 Russia: Solid Urea, A-821-801 7/1/07-6/30/08 Ferrovanadium and Nitrided Vanadium, A-821-807 7/1/07-6/30/08 South Korea: Stainless Steel Sheet and Strip in Coils, A-580-834 7/1/07-6/30/08 Sweden: Carboxymethylcellulose, A-401-808 7/1/07-6/30/08 Taiwan: Polyethylene Terephthalate
(PET)Film, A-583-837 7/1/07-6/30/08 Stainless Steel Sheet and Strip in Coils, A-583-831 7/1/07-6/30/08 Thailand: Carbon Steel butt-Weld Pipe Fittings, A-549-807 7/1/07-6/30/08 Turkey: Certain Pasta, A-489-805 7/1/07-6/30/08 Ukraine: Solid Urea, A-823-801 7/1/07-6/30/08 Countervailing Duty Proceedings India: Polyethylene Terephthalate
(PET)Film, C-533-825 1/1/07-12/31/07 Italy: Certain Pasta, C-475-819 1/1/07-12/31/07 Turkey: Certain Pasta, C-489-806 1/1/07-12/31/07 Suspension Agreements Russia: Certain Hot-Rolled Carbon Steel Flat Products, A-821-809 7/1/07-6/30/08 In accordance with section 351.213(b) of the regulations, an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review, and the requesting party must state why it desires the Secretary to review those particular producers or exporters. 2 If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which were produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover. 2 If the review request involves a non-market economy and the parties subject to the review request do not qualify for separate rates, all other exporters of subject merchandise from the non-market economy country who do not have a separate rate will be covered by the review as part of the single entity of which the named firms are a part. Please note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii). *As explained in Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003), the Department has clarified its practice* with respect to the collection of final antidumping duties on imports of merchandise where intermediate firms are involved. The public should be aware of this clarification in determining whether to request an administrative review of merchandise subject to antidumping findings and orders. See also the Import Administration Web site at *http://ia.ita.doc.gov* . Respondent Selection In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified above, the Department intends to select respondents based on U.S. Customs and Border Protection
(CBP)data for U.S. imports during the POR. We intend to release the CBP data under Administrative Protective Order
(APO)to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 20 days of publication of the initiation **Federal Register** notice. Therefore, we encourage all parties interested in commenting on respondent selection to submit their APO applications on the date of publication of the initiation notice, or as soon thereafter as possible. The Department invites comments regarding the CBP data and respondent selection within 10 calendar days of publication of the initiation **Federal Register** notice. Six copies of the request should be submitted to the Assistant Secretary for Import Administration, International Trade Administration, Room 1870, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230. The Department also asks parties to serve a copy of their requests to the Office of Antidumping/Countervailing Operations, Attention: Sheila Forbes, in room 3065 of the main Commerce Building. Further, in accordance with section 351.303(f)(l)(i) of the regulations, a copy of each request must be served on every party on the Department's service list. The Department will publish in the **Federal Register** a notice of “Initiation of Administrative Review of Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation” for requests received by the last day of July 2008. If the Department does not receive, by the last day of July 2008, a request for review of entries covered by an order, finding, or suspended investigation listed in this notice and for the period identified above, the Department will instruct the U.S. Customs and Border Protection to assess antidumping or countervailing duties on those entries at a rate equal to the cash deposit of (or bond for) estimated antidumping or countervailing duties required on those entries at the time of entry, or withdrawal from warehouse, for consumption and to continue to collect the cash deposit previously ordered. This notice is not required by statute but is published as a service to the international trading community. Dated: July 1, 2008. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E8-15511 Filed 7-10-08; 8:45 am] BILLING CODE 3510-DS-M DEPARTMENT OF COMMERCE International Trade Administration Howard Hughes Medical Institute; Notice of Decision on Application for Duty-Free Entry of Electron Microscopes This is a decision consolidated pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Public Law 106-36;80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5 p.m. in Room 2104, U.S. Department of Commerce, 14th and Constitution Avenue, NW., Washington, DC. *Docket Number:* 08-026. *Applicant:* Howard Hughes Medical Institute, Chevy Chase, MD 20815. *Instrument:* Electron Microscope, Model Tecnai Spirit T12BT. *Manufacturer:* FEI Company, Czech Republic. *Intended Use:* See notice at 73 FR 34704, June 18, 2008. *Comments:* None received. *Decision:* Approved. No instrument of equivalent scientific value to the foreign instrument, for such purposes as these instruments are intended to be used, was being manufactured in the United States at the time the instruments were ordered. *Reasons:* The foreign instrument is an electron microscope and is intended for research or scientific educational uses requiring an electron microscope. We know of no electron microscope, or any other instrument suited to these purposes, which was being manufactured in the United States at the time of order of each instrument. Dated: July 8, 2008. Faye Robinson, Director, Statutory Import Programs Staff, Import Administration. [FR Doc. E8-15832 Filed 7-10-08; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XI99 Endangered Species; File Nos. 13306 and 13307 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Issuance of permits. SUMMARY: Notice is hereby given that Karen Holloway-Adkins, East Coast Biologists, Inc., P.O. Box 33715, Indialantic, FL, 32903 (File No. 13306) and Kristen Hart, 3205 College Ave., Davie, FL, 33314 (File No. 13307) have been issued permits to take green ( *Chelonia mydas* ), loggerhead ( *Caretta caretta* ), and hawksbill ( *Eretmochelys imbricata* ) sea turtles for purposes of scientific research. ADDRESSES: The permits and related documents are available for review upon written request or by appointment in the following office(s): Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; and Southeast Region, NMFS, 263 13th Ave South, St. Petersburg, FL 33701; phone (727)824-5312; fax (727)824-5309. FOR FURTHER INFORMATION CONTACT: Kate Swails or Patrick Opay, (301)713-2289. SUPPLEMENTARY INFORMATION: On April 2, 2008, notice was published in the **Federal Register** (73 FR 17956) that a request for scientific research permits to take sea turtles had been submitted by the above-named individuals. The requested permit has been issued under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 *et seq.* ) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222-226). File No. 13306: Ms. Holloway-Adkins will capture up to 60 green and 5 loggerhead sea turtles annually. The turtles will be weighed, measured, flipper tagged, Passive Integrated Transponder
(PIT)tagged, and blood and tissue sampled. A subset of green turtles will be lavaged. The applicant will also conduct visual transect surveys. This research will characterize the turtle aggregation using the nearshore reef system of Brevard county, Florida as well as monitor the impact of local beach nourishment activities on the sea turtles and their habitat. File No. 13307: Dr. Hart will capture up to 30 green, 20 hawksbill, and 20 loggerhead sea turtles annually. Turtles will be weighed, measured, flipper tagged, PIT tagged, blood sampled, tissue sampled, fecal sampled, and lavaged. A subset of turtles will be tagged with a satellite tag or acoustic transmitter or a combination of both. This research will address fine-scale temporal and spatial patterns of sea turtle habitat use, ecology, and genetic origin within the Dry Tortugas National Park. Issuance of these permits, as required by the ESA, was based on a finding that such permit
(1)was applied for in good faith,
(2)will not operate to the disadvantage of such endangered or threatened species, and
(3)is consistent with the purposes and policies set forth in section 2 of the ESA. Dated: July 7, 2008. P. Michael Payne, Chief,Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E8-15835 Filed 7-10-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-AV80 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Environmental Impact Statement for Amendment 30B AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice announcing the preparation of an environmental impact statement (EIS). SUMMARY: NMFS, in cooperation with the Gulf of Mexico Fishery Management Council (Council), is preparing an EIS in accordance with the National Environmental Policy Act
(NEPA)for Amendment 30B to the Fishery Management Plan
(FMP)for the Reef Fish Resources of the Gulf of Mexico. This notice is intended to inform the public of the reconsideration from preparing an environmental assessment
(EA)to preparing a draft EIS for Amendment 30B. FOR FURTHER INFORMATION CONTACT: Peter Hood; phone:
(727)824-5305; fax:
(727)824-5308; email: *Peter.Hood@noaa.gov* . SUPPLEMENTARY INFORMATION: On March 5, 2007 (72 FR 9734), NMFS and the Council published a Notice of Intent in the **Federal Register** to prepare a draft EIS and to announce scoping meetings regarding the actions proposed in Amendment 30. Amendment 30 was being developed to describe and analyze management alternatives to manage fishing mortality and to establish status criteria for greater amberjack, gray triggerfish, gag, and red grouper in accordance with the Magnuson-Stevens Fishery Conservation and Management Act. Recent stock assessments completed under the Southeast Data, Assessment, and Review program indicated that management changes were warranted for these stocks. Based on comments received during the scoping process and further analyses needed for the gag and red grouper stock assessments, Amendment 30 was split into Amendments 30A and 30B. This allowed proposed actions to revise the greater amberjack rebuilding plan, end overfishing of gray triggerfish, and rebuild the gray triggerfish stock to proceed in Amendment 30A while the status of the gag and red grouper stocks were resolved. A supplemental EIS was prepared for Amendment 30A, in part, due to significant increases in the stock biomass of greater amberjack and gray triggerfish as the two species recover from their respective overfished states. A Notice of Availability for the final supplemental EIS analyzing impacts on the human environment for Amendment 30A was published in the **Federal Register** on April 18, 2008 (73 FR 21124). Actions to be described and analyzed in Amendment 30B include: setting gag thresholds and benchmarks; establishing gag and red grouper total allowable catch (TAC), interim allocations, and accountability measures; ending overfishing of gag; managing gag and red grouper commercial and recreational harvests consistent with TAC; reducing grouper discard mortality; establishing seasonal-area closures; and requiring compliance with Federal fishery management regulations by federally permitted reef fish vessels when fishing in state waters. Based on further analysis of the environmental impacts of actions proposed in Amendment 30B, NMFS and the Council did not anticipate any significant impacts on the human environment and published a notice on March 7, 2008 (73 FR 12393) announcing an EA would be the appropriate NEPA document. Subsequent to this evaluation, the Council wished to examine a more extensive seasonal area closure to protect spawning aggregations of gag and other reef fish species. As a result of this and other changes, NMFS and the Council determined actions in Amendment 30B could be significant to the human environment and determined an EIS was required to further evaluate the impacts of Amendment 30B. Authority: 16 U.S.C. 1801 *et seq.* Dated: July 7, 2008. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-15802 Filed 7-10-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XI31 Marine Mammals; File No. 716-1705 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of permit amendment. SUMMARY: Notice is hereby given that Fred Sharpe, Ph.D., Alaska Whale Foundation, 4739 University Way NE, #1239, Seattle Washington 98105 has been issued an amendment to scientific research Permit No. 716-1705-00. ADDRESSES: The amendment and related documents are available for review upon written request or by appointment in the following offices: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521; Northwest Region, NMFS, 7600 Sand Point Way NE, BIN C15700, Bldg. 1, Seattle, WA 98115-0700; phone (206)526-6150; fax (206)526-6426; and Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907)586-7221; fax (907)586-7249. FOR FURTHER INFORMATION CONTACT: Amy Sloan or Carrie Hubard, (301)713-2289. SUPPLEMENTARY INFORMATION: On June 6, 2008, notice was published in the **Federal Register** (73 FR 32307) that an amendment of Permit No. 716-1705-00 had been requested by the above-named individual. The requested amendment has been granted under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 *et seq.* ), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 *et seq.* ), and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR 222-226). The amendment authorizes Dr. Sharpe to use a mini-helicopter to film lunge feeding humpback whales ( *Megaptera novaeangliae* ) in Southeast Alaska in July and August, 2008. In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ), a supplemental environmental assessment was prepared analyzing the effects of the permitted activities. After a Finding of No Significant Impact, the determination was made that it was not necessary to prepare an environmental impact statement. Issuance of this permit, as required by the ESA, was based on a finding that such permit:
(1)was applied for in good faith;
(2)will not operate to the disadvantage of such endangered species; and
(3)is consistent with the purposes and policies set forth in section 2 of the ESA. Dated: July 7, 2008. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E8-15834 Filed 7-10-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [FWS-R1-R-2008-N0040; 1265-0000-10137-S3] Papaha naumokua kea Marine National Monument, Hawaii AGENCIES: U.S. Fish and Wildlife Service (FWS), Interior; National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of extension of the public comment period for the draft monument management plan and environmental assessment. SUMMARY: This notice advises the public that the public comment period has been extended for the NOAA, FWS, and the State of Hawaii's Department of Land and Natural Resources (DLNR), and Office of Hawaiian Affairs' Draft Monument Management Plan
(MMP)and associated environmental assessment
(EA)for the Papaha naumokua kea Marine National Monument (Monument). See SUPPLEMENTARY INFORMATION for details. DATES: To ensure consideration, we must receive written comments by July 23, 2008. ADDRESSES: The Draft MMP and EA are available on the FWS and NOAA Web sites *http://www.fws.gov/pacificislands* and *http://hawaiireef.noaa.gov/* , as well as at local libraries within the State of Hawaii. You may provide written comments on the Draft MMP and EA by any of the following methods: *U.S. Mail:* Papaha naumokua kea Marine National Monument, Attn: Susan White, FWS Superintendent, Box 50167, Honolulu, HI 96850-5000 (must be postmarked by July 23); *Hand-delivery:* Papaha naumokua kea Marine National Monument at 300 Ala Moana Blvd., Room 5-231 in Honolulu; or *E-mail: PMNM_MMP_Comments@fws.gov* . FOR FURTHER INFORMATION CONTACT: Susan White, FWS Superintendent, phone
(808)792-9480. SUPPLEMENTARY INFORMATION: The 75-day federal public comment period for the Draft Papaha naumokua kea Marine National Monument Management Plan (73 FR 21975, April 23, 2008) has been extended for an additional 15 days, until July 23, 2008. The draft plan was released by the National Oceanic and Atmospheric Administration, the U.S. Fish and Wildlife Service, the State of Hawaii's Department of Land and Natural Resources, and the Office of Hawaiian Affairs on April 22. During a series of ten public meetings in June, members of the public requested an extension of the comment period due to the size of the draft plan. The 90-day federal comment period will end on July 23, 2008. Although the official State comment period occurs from June 8 through July 8 in accordance with State regulations from the Office of Environmental Quality Control, the State will review, consider and address public comments received during the entire comment period. All substantive comments received during the public comment period will be addressed in a Summary of Public Comments section of the final Monument Management Plan, which will compose Volume V of the plan. Dated: July 8, 2008. Daniel J. Basta, Director, Office of National Marine Sanctuaries, National Oceanic and Atmospheric Administration. Dated: July 8, 2008. Gary D. Frazer, Director, United States Fish and Wildlife Service. [FR Doc. E8-15847 Filed 7-10-08; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XI82 U.S. Climate Change Science Program Synthesis and Assessment Product Draft Report 2.3 “Aerosol properties and their impacts on climate” AGENCY: National Oceanic and Atmospheric Administration (NOAA), Department of Commerce. ACTION: Notice of availability and request for public comments. SUMMARY: The National Oceanic and Atmospheric Administration publishes this notice to announce a 45-day public comment period for the draft report titled, U.S. Climate Change Science Program Synthesis and Assessment Product 2.3 “Aerosol properties and their impacts on climate.” This draft report is being released solely for the purpose of pre-dissemination peer review under applicable information quality guidelines. This document has not been formally disseminated by NOAA. It does not represent and should not be construed to represent any Agency policy or determination. After consideration of comments received on the draft report, a revised version along with the comments received will be published on the CCSP web site. DATES: Comments must be received by August 25, 2008. ADDRESSES: The draft Synthesis and Assessment Product: 2.3 is posted on the CCSP Web site at: *http://www.climatescience.gov/Library/sap/sap2-3/default.php* Detailed instructions for making comments on this draft report are provided on the SAP 2.3 webpage. Comments must be prepared in accordance to these instructions and must be submitted to: *2.3-aerosols@climatescience.gov* FOR FURTHER INFORMATION CONTACT: Dr. Fabien Laurier, Climate Change Science Program Office, 1717 Pennsylvania Avenue NW, Suite 250, Washington, DC 20006, Telephone:
(202)419-3481. SUPPLEMENTARY INFORMATION: The CCSP was established by the President in 2002 to coordinate and integrate scientific research on global and climate changes sponsored by 13 participating departments and agencies of the U.S. Government. The CCSP is charged with preparing information resources that promote climate-related discussions and decisions, including scientific synthesis and assessment analyses that support evaluation of important policy issues. Dated: July 1, 2008. William J. Brennan, Assistant Secretary of Commerce for Oceans and Atmosphere, Director, Climate Change Science Program. [FR Doc. E8-15800 Filed 7-10-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF DEFENSE Department of the Army Inland Waterways Users Board; Request for Nominations AGENCY: Department of the Army, DOD. ACTION: Notice. SUMMARY: Section 302 of Public Law 99-662 established the Inland Waterways Users Board. The Board is an independent Federal advisory committee. The Secretary of the Army appoints its 11 members. This notice is to solicit nominations for six
(6)appointments or reappointments to two-year terms that will begin after March 1, 2009. ADDRESSES: Office of the Assistant Secretary of the Army (Civil Works), Attention: Inland Waterways Users Board Nominations Committee, 108 Army Pentagon, Washington, DC 20310-0108. FOR FURTHER INFORMATION CONTACT: Office of the Assistant Secretary of the Army (Civil Works),
(703)697-8986. SUPPLEMENTARY INFORMATION: The selection, service, and appointment of Board members are covered by provisions of Section 302 of Public Law 99-662. The substance of those provisions is as follows: *a. Selection.* Members are to be selected from the spectrum of commercial carriers and shippers using the inland and intracoastal waterways, to represent geographical regions, and to be representative of waterborne commerce as determined by commodity ton-miles statistics. *b. Service.* The Board is required to meet at least semi-annually to develop and make recommendations to the Secretary of the Army on waterways construction and rehabilitation priorities and spending levels for commercial navigation improvements, and report its recommendations annually to the Secretary and Congress. *c. Appointment.* The operation of the Board and appointment of its members are subject to the Federal Advisory Committee Act (Pub. L. 92-463, as amended) and departmental implementing regulations. Members serve without compensation but their expenses due to Board activities are reimbursable. The considerations specified in Section 302 for the selection of the Board members, and certain terms used therein, have been interpreted, supplemented, or otherwise clarified as follows: *(1) Carriers and Shippers.* The law uses the terms “primary users and shippers.” Primary users have been interpreted to mean the providers of transportation services on inland waterways such as barge or towboat operators. Shippers have been interpreted to mean the purchasers of such services for the movement of commodities they own or control. Individuals are appointed to the Board, but they must be either a carrier or shipper, or represent a firm that is a carrier or shipper. For that purpose a trade or regional association is neither a shipper nor primary user. *(2) Geographical Representation.* The law specifies “various” regions. For the purpose of selecting Board members, the waterways subjected to fuel taxes and described in Public Law 95-502, as amended, have been aggregated into six regions. They are
(1)The Upper Mississippi River and its tributaries above the mouth of the Ohio;
(2)the Lower Mississippi River and its tributaries below the mouth of the Ohio and above Baton Rouge;
(3)the Ohio River and its tributaries;
(4)the Gulf Intracoastal Waterway in Louisiana and Texas;
(5)the Gulf Intracoastal Waterway east of New Orleans and associated fuel-taxed waterways including the Tennessee-Tombigbee, plus the Atlantic Intracoastal Waterway below Norfolk; and
(6)the Columbia-Snake Rivers System and Upper Willamette. The intent is that each region shall be represented by at least one Board member, with that representation determined by the regional concentration of the individual's traffic on the waterways. *(3) Commodity Representation.* Waterway commerce has been aggregated into six commodity categories based on “inland” ton-miles shown in Waterborne Commerce of the United States. These categories are
(1)Farm and Food Products;
(2)Coal and Coke;
(3)Petroleum, Crude and Products;
(4)Minerals, Ores, and Primary Metals and Mineral Products;
(5)Chemicals and Allied Products; and
(6)All Other. A consideration in the selection of Board members will be that the commodities carried or shipped by those individuals or their firms will be reasonably representative of the above commodity categories. *d. Nomination.* Reflecting preceding selection criteria, the current representation by the six
(6)Board members whose terms will expire is one member each representing regions 3 and 6, and two members representing regions 1 and 2. Also, three of these Board members represent carriers, one represents a shipper and two represents a carrier/shipper. Three of the six members whose terms will expire are eligible for reappointment. Nominations to replace Board members whose terms expire may be made by individuals, firms or associations. Nominations will:
(1)State the region(s) to be represented.
(2)State whether the nominee is representing carriers, shippers or both.
(3)Provide information on the nominee's personal qualifications.
(4)Include the commercial operations of the carrier and/or shipper with whom the nominee is affiliated. This commercial operations information will show the actual or estimated ton-miles of each commodity carried or shipped on the inland waterways system in a recent year (or years) using the waterway regions and commodity categories previously listed. Nominations received in response to **Federal Register** notice published on February 17, 2006 (71 FR 8568), notice published on July 7, 2006 (71 FR 38629) and notice published on February 16, 2007 (72 FR 7620) have been retained for consideration. Renomination is not required but may be desirable to indicate continued interest and provide updated information. e. *Deadline for Nominations.* All nominations must be received at the address shown above no later than September 15, 2008. Brenda S. Bowen, Army Federal Register Liaison Officer. [FR Doc. E8-15774 Filed 7-10-08; 8:45 am] BILLING CODE 3710-92-P DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before September 9, 2008. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget
(OMB)provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following:
(1)Type of review requested, e.g. new, revision, extension, existing or reinstatement;
(2)Title;
(3)Summary of the collection;
(4)Description of the need for, and proposed use of, the information;
(5)Respondents and frequency of collection; and
(6)Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues:
(1)Is this collection necessary to the proper functions of the Department;
(2)will this information be processed and used in a timely manner;
(3)is the estimate of burden accurate;
(4)how might the Department enhance the quality, utility, and clarity of the information to be collected; and
(5)how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Dated: July 1, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Office of Elementary and Secondary Education *Type of Review:* New. *Title:* Leveraging Educational Technology to Keep America Competitive: National Teacher Technology Study. *Frequency:* On Occasion. *Affected Public:* Individuals or household. *Reporting and Recordkeeping Hour Burden:* Responses: 2,300. Burden Hours: 750. *Abstract:* The purpose of this study is to investigate the technology experiences included in pre-service teacher preparation programs, as well as how teachers use technology in the classroom. A three-phase grounded theory research design employs
(1)educational technology faculty and general induction teacher surveys,
(2)educational technology faculty and accomplished technology using teacher phone interviews, and
(3)case studies of teacher education programs and accomplished technology-using teachers. Requests for copies of the proposed information collection request may be accessed from *http://edicsweb.ed.gov,* by selecting the “Browse Pending Collections” link and by clicking on link number 3726. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov.* Individuals who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 1-800-877-8339. [FR Doc. E8-15498 Filed 7-10-08; 8:45 am] BILLING CODE 4000-01-M DEPARTMENT OF EDUCATION Submission for OMB Review; Comment Request AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before August 11, 2008. ADDRESSES: Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to *oira_submission@omb.eop.gov* or via fax to
(202)395-6974. Commenters should include the following subject line in their response “Comment: [insert OMB number], [insert abbreviated collection name, e.g., ‘Upward Bound Evaluation’]. Persons submitting comments electronically should not submit paper copies. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget
(OMB)provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following:
(1)Type of review requested, e.g., new, revision, extension, existing or reinstatement;
(2)Title;
(3)Summary of the collection;
(4)Description of the need for, and proposed use of, the information;
(5)Respondents and frequency of collection; and
(6)Reporting and/or Recordkeeping burden. OMB invites public comment. Dated: July 7, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Office of Elementary and Secondary Education *Type of Review:* New. *Title:* Impact Aid Program Application for Section 8003 Assistance. *Frequency:* Annually. *Affected Public:* State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* *Responses:* 504,306. *Burden Hours:* 143,346. *Abstract:* The U.S. Department of Education is requesting approval for the Application for Assistance under Section 8003 of Title VIII of the Elementary and Secondary Education Act
(ESEA)as amended by No Child Left Behind (NCLB). This application is otherwise known as Impact Aid Basic Support Payments. Local Educational Agencies
(LEAs)whose enrollments are adversely affected by Federal activities use this form to request financial assistance. Regulations for the Impact Aid Program are found at 34 CFR 222. The statute and regulations for this program require a variety of data from applicants annually to determine eligibility for the grants and the amount of grant payment under the statutory formula. The least burdensome method of collecting this required information is for each applicant to submit these data through a web-based electronic application hosted on the Department of Education's e-Grants Web site. This application was previously approved under OMB 1810-0036, along with a separate application for Section 8002, payments for Federal property, another distinct formula that requires different data from applicant LEAs. To facilitate more efficient clearance processes for both applications this year and in future years, the Department is separating these two applications into two paperwork approval packages. The Section 8002 application will be submitted under the OMB 1810-0036 number that both applications previously have been cleared under. There are no substantive changes to this application. The Department of Education is requesting renewal of its three-year clearance under a new collection number. Requests for copies of the information collection submission for OMB review may be accessed from *http://edicsweb.ed.gov,* by selecting the “Browse Pending Collections” link and by clicking on link number 3656. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov.* Individuals who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 1-800-877-8339. [FR Doc. E8-15853 Filed 7-10-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP08-256-000] Algonquin Gas Transmission, LLC; Notice of Intent To Prepare an Environmental Assessment for the Proposed J-2 Loop Project, Request for Comments on Environmental Issues, and Notice of Site Visit July 3, 2008. The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment
(EA)that will discuss the environmental impacts of the J-2 Loop Project, involving construction and operation of natural gas facilities by Algonquin Gas Transmission, LLC (Algonquin) in Middlesex County, Massachusetts. The EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity. This notice announces the opening of the scoping period that will be used to gather environmental input from the public and interested agencies on the project. Your input will help the Commission staff determine which issues need to be evaluated in the EA. Please note that the scoping period will close on August 2, 2008. Details on how to submit comments are provided in the Public Participation section of this notice. If you are a landowner receiving this notice, you may be contacted by an Algonquin representative about the acquisition of an easement to construct, operate, and maintain the proposed project facilities. The pipeline company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, Algonquin could initiate condemnation proceedings in accordance with Massachusetts State law. A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility on My Land? What Do I Need to Know?” addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site ( *http://www.ferc.gov* ). With this notice, we 1 are asking other Federal, State, and local agencies with jurisdiction and/or special expertise with respect to environmental issues to cooperate with us in the preparation of the EA. Agencies that would like to request cooperating status should follow the instructions for filing comments provided below. 1 “We,” “us,” and “our” refer to the environmental staff of the FERC's Office of Energy Projects. Summary of the Proposed Project Algonquin seeks authorization to construct about 2.3 miles of 14-inch-diameter pipeline and associated facilities within the cities of Medford and Somerville, Massachusetts. The project would commence at an existing meter station adjacent to the Mystic Valley Parkway in Medford and travel in a general southeast direction within road rights-of-way to its terminus at an interconnection with NSTAR Gas Company's (NSTAR) system adjacent to the McGrath Highway/railroad track overpass in Somerville. A meter station and pig 2 launcher facility would be constructed in Medford, at the existing meter station and a valve and pig receiver would be constructed at the interconnect with NSTAR. 2 A pipeline “pig” is a device designed to internally clean or inspect the pipeline. A pig launcher/receiver is an aboveground facility where pigs are inserted or retrieved from the pipeline. Appendix A presents a detailed map identifying all facilities associated with this project. 3 3 The appendices referenced in this notice are not being printed in the **Federal Register** . Copies are available on the Commission's Internet Web site ( *http://www.ferc.gov* ) at the “eLibrary” link or from the Commission's Public Reference Room at
(202)502-8371. For instructions on connecting to eLibrary, refer to the “Additional Information” section at the end of this notice. Copies of the appendices were sent to all those receiving this notice in the mail. Requests for detailed maps of the proposed facilities should be made directly to Dominion. Land Requirements for Construction Algonquin would temporarily disturb about 36.8 acres to construct the new pipeline and about 0.6 acres for aboveground facilities. During operation of the project, Algonquin would affect about 0.33 acres for pipeline maintenance and about 0.04 acres for aboveground facilities. The majority of the J-2 Loop Project would be constructed within existing roadways, roadside shoulders, and paved parking areas. The EA Process We are preparing this EA to comply with the National Environmental Policy Act of 1969
(NEPA)which requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, we are requesting public comments on the scope of the issues to be addressed in the EA. All comments received will be considered during the preparation of the EA. The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under the following general headings: • Geology and Soils • Cultural Resources • Land Use and Visual Quality • Air Quality and Noise • Alternatives • Reliability and Safety We note that the proposed pipeline would be within high-density multi-family residential areas and would require special construction procedures. Our independent analysis of the issues will be addressed in the EA. Depending on the comments received during the scoping process, the EA may be published for distribution and mailed to federal, state, and local agencies; public interest groups; interested individuals; affected landowners; newspapers and libraries in the project area; and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission. Public Participation You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commenter, your concerns will be addressed in the EA and considered by the Commission. Your comments should focus on the potential environmental effects of the proposal, reasonable alternatives (including alternative locations and routes), and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded: • Send an original and two copies of your letter to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426. • Label one copy of the comments for the attention of Gas Branch 1; • Reference Docket No. CP08-256-000; • Mail your comments so that they will be received in Washington, DC on or before August 2, 2008. The Commission encourages electronic filing of comments. See 18 Code of Federal Regulations 385.2001(a)(1)(iii) and the instructions on the Commission's Internet Web site at *http://www.ferc.gov* under the link to “ *Documents and Filings* ” and “ *eFiling* .” eFiling is a file attachment process and requires that you prepare your submission in the same manner as you would if filing on paper, and save it to a file on your hard drive. New eFiling users must first create an account by clicking on “ *Sign up* ” or “ *eRegister* .” You will be asked to select the type of filing you are making. This filing is considered a “Comment on Filing.” In addition, there is a “ *Quick Comment* ” option available, which is an easy method for interested persons to submit text only comments on a project. The *Quick-Comment User Guide* can be viewed at *http://www.ferc.gov/docs-filing/efiling/quick-comment-guide.pdf.* Quick Comment does not require a FERC eRegistration account; however, you will be asked to provide a valid e-mail address. All comments submitted under either eFiling or the Quick Comment option are placed in the public record for the specified docket or project number(s). Becoming an Intervenor In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor.” Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must send one electronic copy (using the Commission's eFiling system) or 14 paper copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an intervenor, you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214) (see appendix B). 4 Only intervenors have the right to seek rehearing of the Commission's decision. 4 Interventions may also be filed electronically via the Internet in lieu of paper. See the previous discussion on filing comments electronically. Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered. Site Visit On July 15, 2008, the Office of Energy Projects'
(OEP)staff will conduct a pre-certification site visit of the proposed J-2 Loop Project. Representatives of Algonquin and Massachusetts Energy Facilities Siting Board will accompany the OEP staff. We will tour the proposed project area by automobile and on foot viewing Algonquin's proposed pipeline route, route variations, and aboveground facilities that are being considered for the proposed project. All interested parties may attend the site visit. Those planning to attend must provide their own transportation. If you are interested in attending the site visit, please meet us at 4:00 p.m. in the parking lot of the Somerville High School, 81 Highland Avenue, Somerville, MA. For additional information, please contact the Commission's Office of External Affairs at 1-866-208-FERC (3372). Environmental Mailing List An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. This includes all landowners who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within distances defined in the Commission's regulations of certain aboveground facilities. We encourage government representatives to notify their constituents of this proposed project and encourage them to comment on their areas of concern. If you do not return the form included as Appendix C, you will be removed from the Commission's environmental mailing list. Additional Information Additional information about the project is available from the Commission's Office of External Affairs at 1-866-208-FERC
(3372)or on the FERC Internet Web site ( *http://www.ferc.gov* ). Using the “eLibrary” link, select “General Search” from the eLibrary menu, enter the selected date range and “Docket Number” excluding the last three digits ( *i.e.* , CP08-256), and follow the instructions. For assistance with access to eLibrary, the helpline can be reached at 1-866-208-3676, TTY
(202)502-8659, or at *FERCOnlineSupport@ferc.gov.* The eLibrary link on the FERC Internet Web site also provides access to the texts of formal documents issued by the Commission such as orders, notices, and rule makings. In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to *http://www.ferc.gov/esubscribenow.htm.* Finally, any public meetings or site visits will be posted on the Commission's calendar located at *http://www.ferc.gov/EventCalendar/EventsList.aspx* along with other related information. Kimberly D. Bose, Secretary. [FR Doc. E8-15792 Filed 7-10-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket Nos. ER07-1289-002; ER07-1289-003; ER07-1289-004; ER07-1289-005; Docket No. EL08-56-000 (consolidated)] ISO New England Inc.; New Brunswick Power Transmission Corporation, New Brunswick System Operator, and Northern Maine Independent System Administrator v. ISO New England Inc.; Notice of Institution of Proceeding and Refund Effective Date July 3, 2008. On July 2, 2008, the Commission issued an order that instituted a proceeding in the above-referenced proceeding, pursuant to section 206 of the Federal Power Act
(FPA)16 U.S.C. 824e, concerning issues stemming from the Maine Electric Power Company Roll-in Proposal (the MEPCO Roll-in Proposal) in *ISO New England Inc.,* 124 FERC ¶ 61,013 (2008). The refund effective date in the above-docketed proceeding, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the **Federal Register.** Kimberly D. Bose, Secretary. [FR Doc. E8-15790 Filed 7-10-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No.: 12548-002] Hydrodynamics, Inc.; Notice of Paper Scoping and Soliciting Scoping Comments and ERRATA to Tendering Notice July 3, 2008. Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection. a. *Type of Application:* Minor unconstructed project. b. *Project No.:* 12548-002. c. *Date filed:* April 1, 2008. d. *Applicant:* Hydrodynamics, Inc. e. *Name of Project:* Greenfield. f. *Location:* On the Greenfields Main Canal, part of the Bureau of Reclamation's Sun River Irrigation Project, in Teton County, Montana, near Fairfield, Montana. g. *Filed Pursuant to:* Federal Power Act 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Roger Kirk, Hydrodynamics, Inc., P.O. Box 1136, Bozeman, MT 59771,
(406)587-5086. i. *FERC Contact:* Dianne Rodman, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426; telephone
(202)502-6077 or by e-mail at *dianne.rodman@ferc.gov.* j. *Deadline for filing scoping comments:* August 4, 2008. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. Scoping comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site ( *http://www.ferc.gov* ) under the “e-Filing” link. k. This application is not ready for environmental analysis at this time. l. The proposed Greenfield Project would be built at the Greenfields Main Canal's Greenfield drop structure. The applicant proposes to construct:
(1)An inflatable weir spanning the width of the canal;
(2)an intake structure with trash rack and radial gate or stop-log shut off;
(3)a buried, 84-inch-diameter, 650-foot-long steel or polyethylene penstock;
(4)a powerhouse containing one Francis or propeller (Reaction) turbine and one generator with a rated output of 600 kilowatts;
(5)a tailrace about 7 feet long, returning flows to the canal;
(6)a switchyard; and
(7)a 0.05-mile-long, 12-kilovolt transmission line interconnecting with an existing powerline. Average annual generation would be 1.5 gigawatt hours. m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number, excluding the last three digits, in the docket number field to access the document. For assistance, contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll-free at 1-866-208-3676, or for TTY,
(202)502-8659. A copy is also available for inspection and reproduction at the address in item h above. You may also register online at *http://www.ferc.gov/docs-filings/esubscription.asp* to be notified via e-mail of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support. n. *Scoping Process:* The Commission intends to prepare an Environmental Assessment
(EA)on the project in accordance with the National Environmental Policy Act of 1969, as amended. 1 The EA will consider both site-specific and cumulative environmental impacts and reasonable alternatives to the proposed action. 1 One EA will be prepared for the Woods Project (FERC No. P-12540), Johnson Project, (FERC No. P-12545), Greenfield Project (FERC No. P-12548) and A-Drop Project (FERC No. P-12549). Commission staff does not propose to conduct any on-site scoping meetings at this time. Instead, we will solicit comments, recommendations, information, and alternatives in the Scoping Document (SD). Copies of the SD outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list. Copies of the SD may be viewed on the Web at *http://www.ferc.gov* using the “eLibrary” link (see item m above). o. The tendering notice issued April 14, 2008, incorrectly stated that the application for the Greenfield Project was filed on March 31, 2008. The correct filing date for the Greenfield Project application is April 1, 2008. Kimberly D. Bose, Secretary. [FR Doc. E8-15789 Filed 7-10-08; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 12540-002] Hydrodynamics, Inc.; Notice of Paper Scoping and Soliciting Scoping Comments and Errata to Tendering Notice July 3, 2008. Take notice that the following hydroelectric applications have been filed with the Commission and are available for public inspection. a. *Type of Application:* Minor unconstructed projects. b. *Project No.:* 12540-002, 12545-002, and 12549-002. c. *Date Filed:* March 31, 2008. d. *Applicant:* Hydrodynamics, Inc. e. *Name of Projects:* Woods, Johnson, and A-Drop. f. *Location:* On the Greenfields Main Canal and the Greenfields South Canal, parts of the Bureau of Reclamation's Sun River Irrigation Project, in Cascade and Teton Counties, Montana, near Fairfield, Montana. g. *Filed Pursuant to:* Federal Power Act 16 U.S.C. 791(a)-825(r). h. *Applicant Contact:* Roger Kirk, Hydrodynamics, Inc., P.O. Box 1136, Bozeman, MT 59771,
(406)587-5086. i. * FERC Contact:* Dianne Rodman, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426; telephone
(202)502-6077 or by e-mail at *dianne.rodman@ferc.gov.* j. *Deadline for filing scoping comments:* August 4, 2008. All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. Scoping comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site ( *http://www.ferc.gov* ) under the “e-Filing” link. k. These applications are not ready for environmental analysis at this time. l. The proposed Woods Project would be built at the Greenfields Main Canal's Woods drop structure. The applicant proposes to construct:
(1)An inflatable weir spanning the full width of the canal;
(2)an intake structure with trash rack and radial gate or stop-log shut off;
(3)a buried, 72-inch-diameter, 750-foot-long steel or polyethylene penstock;
(4)a powerhouse containing one Francis or propeller (Reaction) turbine and one generator with a rated output of 900 kilowatts (kW);
(5)a tailrace about 12.5 feet long, returning flows to the canal;
(6)a switchyard; and
(7)a 0.1-mile-long, 69-kilovolt
(kV)transmission line interconnecting with an existing powerline. Average annual generation would be 2.2 gigawatt hours (GWh). The proposed Johnson Project would be built at the Greenfields South Canal's Johnson drop structure. The applicant proposes to construct:
(1)An inflatable weir spanning the width of the canal;
(2)an intake structure with trash rack and radial gate or stop-log shut off;
(3)a buried, 60-inch-diameter, 900-foot-long steel or polyethylene penstock;
(4)a powerhouse containing one Francis or propeller (Reaction) turbine and one generator with a rated output of 700 kW;
(5)a tailrace about 11.25 feet long, returning flows to the canal;
(6)a switchyard;
(7)a 0.5-mile-long, 69-kV transmission line interconnecting with an existing powerline; and
(8)a powerhouse access road. Average annual generation would be 1.7 GWh. The proposed A-Drop Project would be built at the Greenfields Main Canal's Greenfield drop structure. The applicant proposes to construct:
(1)An inflatable weir spanning the width of the canal;
(2)an intake structure with trash rack and radial gate or stop-log shut off;
(3)a buried, 96-inch-diameter, 570-foot-long steel or polyethylene penstock;
(4)a powerhouse containing one Francis or propeller (Reaction) turbine and one generator with a rated output of 1,000 kW;
(5)a tailrace returning flows to the canal;
(6)a switchyard;
(7)a 0.1-mile-long, 12-kV transmission line interconnecting with an existing powerline; and
(8)an approximately 570-foot-long powerhouse access road. Average annual generation would be 2.5 GWh. m. Copies of the applications are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number, excluding the last three digits, in the docket number field to access each of the documents. For assistance, contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll-free at 1-866-208-3676, or for TTY,
(202)502-8659. Copies are also available for inspection and reproduction at the address in item h above. You may also register online at *http://www.ferc.gov/docs-filings/esubscription.asp* to be notified via e-mail of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support. *n. Scoping Process* The Commission intends to prepare an Environmental Assessment
(EA)on the projects in accordance with the National Environmental Policy Act of 1969, as amended. 1 The EA will consider both site-specific and cumulative environmental impacts and reasonable alternatives to the proposed actions. 1 One EA will be prepared for the Woods Project (FERC No. P-12540), Johnson Project, (FERC No. P-12545), Greenfield Project (FERC No. P-12548) and A-Drop Project (FERC No. P-12549). Commission staff does not propose to conduct any on-site scoping meetings at this time. Instead, the staff will solicit comments, recommendations, information, and alternatives in the Scoping Document (SD). Copies of the SD outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list. Copies of the SD may be viewed on the Web at *http://www.ferc.gov* using the “eLibrary” link (see item m above). o. The tendering notice issued April 14, 2008, incorrectly stated that the application for the A-Drop Project was filed on April 1, 2008. The correct filing date for the A-Drop Project application is March 31, 2008. Kimberly D. Bose, Secretary. [FR Doc. E8-15791 Filed 7-10-08; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY [ER-FRL-8583-5] Environmental Impacts Statements; Notice of Availability *Responsible Agency:* Office of Federal Activities, General Information
(202)564-7167 or *http://www.epa.gov/compliance/nepa/.* Weekly receipt of Environmental Impact Statements. Filed 06/30/2008 through 07/02/2008. Pursuant to 40 CFR 1506.9. *EIS No. 20080259, Draft EIS, AFS, WY* , Spruce Gulch Bark Beetle and Fuels Reduction Project, Proposes to Implement Bark Beetle Related Salvage and Suppression Vegetative Treatments and Hazardous Fuels Abatement Treatments, Laramie Ranger District, Medicine Bow-Routt National Forests, Albany and Carbon Counties, WY, Comment Period Ends: 08/25/2008, Contact: Melissa M. Martin 307-745-2371. This document is available on the Internet at: *http://www.fs.fed.us/r2/mbr/projects/foresthealth.* *EIS No. 20080260, Draft EIS, AFS, WI* , Medford Aspen Project, To Implement a Number of Vegetation and Transportation Management Activities, Medford-Park Falls Ranger District, Chequamegon-Nicolet National Forest, Taylor County, WI, Comment Period Ends: 08/25/2008, Contact: Jane Darnell 715-748-4875. *EIS No. 20080261, Draft EIS, USA, CA* , PROGRAMMATIC—Brigade Combat Team Transformation Project, Restructure the 11th Armored Cavalry Regiment
(ACR)to a Multi-Component (active duty/reserve) Heavy Brigade Combat Team
(HBCT)and change/add several other organizations, Fort Irwin, CA, Comment Period Ends: 08/25/2008, Contact: Muhammad Bari 760-480-3410. *EIS No. 20080262, Draft EIS, SFW, NV* , Desert National Wildlife Refuge Complex, Ash Meadows, Desert, Moapa Valley and Pahranagat National Wildlife Refuges, Comprehensive Conservation Plan, Clark, Lincoln and Nye counties, NV, Comment Period Ends: 08/25/2008, Contact: Cynthia Martinez 702-515-5450. *EIS No. 20080263, Draft EIS, COE, CA* , Three Rivers Levee Improvement Authority, proposes construct and maintain the Feather River Levee Repair Project, Segment 2, Issuing 408 Permission and 404 Permit, Yuba County, CA, Comment Period Ends: 08/25/2008, Contact: John Suazo 916-557-6719. *EIS No. 20080264, Second Final Supplement, DOE, NV* , Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada—Nevada Rail Transportation Corridor (DOE/EIS-0250F-S2D), Wait Period Ends: 08/11/2008, Contact: Dr. Jane R. Summerson 702-794-1493. *EIS No. 20080265, Second Final EIS (Tiering), DOE, NV* , Rail Alignment for the Construction and Operation of a Railroad in Nevada to a Geologic Repository (DOE/EIS-0369D) at Yucca Mountain, Nye County, NV, Wait Period Ends: 08/11/2008, Contact: Dr. Jane R. Summerson 702-794-1493. *EIS No. 20080266, Final Supplement, DOE, NV* , Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste, Construction, Operation, Monitoring and Eventually Closing a Geologic Repository (DOE/EIS-0250F-S1D) at Yucca Mountain, Nye County, NV, Wait Period Ends: 08/11/2008, Contact: Dr. Jane R. Summerson 702-794-1493. *EIS No. 20080267, Draft Supplement, BLM, CA* , Sunrise Powerlink Transmission Line Project, New Information, Proposed Land Use Plan Amendment, Construction and Operation of a New 91-mile 500 kilovolt
(kV)Electric Transmission Line from Imperial Valley Substation (in Imperial Co. near the City of El Centro) to a New Central East Substation (in Central San Diego County) Imperial and San Diego Counties, CA, Comment Period Ends: 08/25/2008, Contact: Lynda Kastoll 760-337-4400. *EIS No. 20080268, Draft Supplement, FTA, MN* , Central Corridor Project, New Information on the 11 miles Light Rail Transit between downtown Minneapolis and downtown St. Paul, Minnesota, Twin Cities Metropolitan Area, MN, Comment Period Ends: 08/25/2008, Contact: Marisol Simon 312-353-2789. Amended Notices *EIS No. 20070536, Draft EIS, AFS, 00* , ~VOIDED~ National Forest System Lands in Utah Wild and Scenic River Suitability Study for 86 Eligible River Segments for Inclusion in the National Wild and Scenic River System, Ashley, Dixie, Fishlake, Manti-LaSal, Uinta, Wasatch-Cache National Forests in Utah and Portions of National Forests in Colorado and Wyoming, Comment Period Ends: 02/15/2008, Contact: Catherine Kahlow 435-783-4338. This DEIS was inadvertently refilled and published in 12/28/2007 FR. The Correct DEIS #20070508 was published in 12/07/2007 FR. *EIS No. 20080106, Draft EIS, AFS, CO* , Long Draw Reservoir Project, Re-Issue a Special-Use-Authorization to Water Supply and Storage to Allow the Continued Use of Long Draw Reservoir and Dam, Arapaho and Roosevelt National Forests and Pawnee National Grassland, Grand and Larimer Counties, CO, Comment Period Ends: 07/11/2008, Contact: Ken Tu 970-295-6623. Revision of FR Notice Published 03/28/2008: Extending Comment Period from 06/11/2008 to 07/11/2008. Dated: July 8, 2008. Ken Mittelholtz, Environmental Protection Specialist, Office of Federal Activities. [FR Doc. E8-15813 Filed 7-10-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [ER-FRL-8583-6] Environmental Impact Statements and Regulations; Availability of EPA Comments Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)
(c)of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167. An explanation of the ratings assigned to draft environmental impact statements
(EISs)was published in FR dated April 11, 2008 (73 FR 19833). Draft EISs *EIS No. 20080077, ERP No. D-COE-K36149-CA,* San Diego Creek Watershed Special Area Management Plan/Watershed Streambed Alteration Agreement Process (SAMP/WSAA Process), Protecting and Enhancing Aquatic Resource and Permitting Reasonable Economic Development, Orange County, CA. *Summary:* EPA continues to have environmental concerns about impacts to resources and requested additional information on the reasonableness of the alternatives, and why specific Nationwide Permits are proposed for revocation while others would be retained. Rating EC2. *EIS No. 20080135, ERP No. D-COE-E39072-TN,* PROGRAMMATIC—Hydropower Rehabilitations, Dissolved Oxygen and Minimum Flow Regimes at Wolf Creek Dam, Kentucky and Center Hill and Dale Hollow Dams, Tennessee, Implementation. *Summary:* EPA expressed environmental concerns about water quality and stream flow impacts, and recommends the identification of the improvement program and schedule, monitoring protocols, and adaptive management decision-making process in the Final EIS. Rating EC2. *EIS No. 20080156, ERP No. D-NRC-E06026-GA,* GENERIC—License Renewal of Nuclear Plants, Supplement 34 to NUREG-1437, Regarding Vogtle Electric Generating Plant Units 1 and 2
(VEGP)near Waynesboro, GA. *Summary:* EPA expressed environmental concerns about tritium and requested additional information on actions to mitigate or lessen the release of tritium to the Savannah River. Surface water withdrawal impacts and impacts to aquatic species during drought conditions are also a concern. Rating EC1. *EIS No. 20080159, ERP No. DA-NOA-A91061-00,* Atlantic Mackerel, Squid and Butterfish, Fishery Management Plan, Amendment No. 10, Develop a Rebuilding Program that Allows the Butterfish Stock to Rebuild in the Shortest Amount of Time Possible, Exclusive Economic Zone
(EEZ)off the U.S. Atlantic Coast. *Summary:* EPA has no objection to the proposed action. Rating LO. *EIS No. 20080180, ERP No. DC-FTA-L40205-00,* South Corridor Portland-Milwaukie Light Rail Project, Proposal to Develop Light Rail Transit in Final Segment, Connecting Downtown Portland, OR, the City of Milwaukie and north Clackamas and Multnomah Counties, OR and Clark County, WA. *Summary:* EPA expressed environmental concerns about water quality impacts within waterbodies that are 303(d) listed for temperature, mercury, bacteria, and other criteria. The project has the potential to disturb contaminated sites and to release hazardous substances. Rating EC2. *EIS No. 20080185, ERP No. DS-FSA-A65173-00* , PROGRAMMATIC—Expansion of the Emergency Conservation Program, To Restore Farmland (Cropland, Hayland and Pastureland) to a Normal Productive State after a Natural Disaster. *Summary:* EPA has no objections to the proposed action. Rating LO. Final EISs *EIS No. 20080017, ERP No. F-COE-K39098-CA,* San Clemente Dam Seismic Safety Project, Increase Dam Safety to Meet Current Design Standards, Monterey County, CA. *Summary:* EPA continues to have environmental concerns about habitat impacts and steelhead recovery following dam removal. EPA supported the two dam removal alternatives and noted continuing concerns with all other alternatives. *EIS No. 20080141, ERP No. F-TVA-E08022-TN,* Rutherford-Williamson-Davidson Power Supply Improvement Project, Proposes to Construct and Operate a New 500-kilovolt
(kV)Rutherford Substation, a New 27-mile 500-kV Transmission Line and Two New 9- and 15 mile 161-kV Transmission Lines, Rutherford, Williamson, and Maury Counties, TN. *Summary:* EPA continues to have environmental concerns about impaired waterbody and forested wetland impacts. *EIS No. 20080183, ERP No. F-FHW-F40429-00,* US-131 Improvement Study, from the Indiana Toll Road (1-80/90) to a Point One Mile North of Cowling Road, U.S. Army COE Section 404 Permit, St. Joseph County, MI and Elkhart County, IN. *Summary:* While EPA has no objection to the proposed action, EPA recommended that the ROD discuss monitoring wetland hydrology and coordinate seasonal restrictions on activities in the St. Joseph River riparian corridor. *EIS No. 20080196, ERP No. F-NRC-H06006-KS,* GENERIC—License Renewal of Nuclear Plants Regarding Wolf Creek Generating Station,
(WCGS)Unit 1. Supplement 32 to NUREG 1437, Implementation, Coffey Country, KS. *Summary:* While EPA has no objections to the proposed action, EPA recommends close coordination with the U.S. Army Corps of Engineers regarding the viability of John Redmond reservoir to supply future make-up water needs. *EIS No. 20080208, ERP No. F-NRC-G09805-OK,* Sequoyah Fuels Corporation Site, Proposed Reclamation Activities for the 243-hectare (600 acre) Site, (NUREG-1888) in Gore, OK. *Summary:* No formal comment letter was sent to the preparing agency. *EIS No. 20080212, ERP No. F-BIA-L60108-WA,* Cowlitz Indian Tribe Trust Acquisition and Casino Project, Take 151.87 Acres into Federal Trust and Issuing of Reservation Proclamation, and Approving the Gaming Development and Management Contract, Clack County, WA. *Summary:* EPA's previous issues have been resolved; therefore, EPA has no objection to the proposed action. *EIS No. 20080216, ERP No. F-BPA-J08028-MT* , Libby (FP-1) to Troy Section of BPA's Libby to Bonner Ferry 115-kilovolt Transmission Line Project, Rebuilding Transmission Line between Libby and Troy, Lincoln County, MT. *Summary:* EPA expressed environmental concerns about water quality and ground disturbance impacts. Dated: July 8, 2008. Ken Mittelholtz, Environmental Protection Specialist, Office of Federal Activities. [FR Doc. E8-15842 Filed 7-10-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [FRL-8689-9] Integrated Science Assessment for Oxides of Nitrogen—Health Criteria AGENCY: Environmental Protection Agency. ACTION: Notice of availability. SUMMARY: The U.S. Environmental Protection Agency
(EPA)is announcing the availability of a final document entitled “Integrated Science Assessment for Oxides of Nitrogen—Health Criteria” (EPA/600/R-08/071). The document was prepared by the National Center for Environmental Assessment within EPA's Office of Research and Development as part of the review of the primary (health-based) national ambient air quality standards (NAAQS) for oxides of nitrogen. DATES: The document will be available on July 11, 2008. ADDRESSES: The “Integrated Science Assessment for Oxides of Nitrogen—Health Criteria” will be available primarily via the Internet on the National Center for Environmental Assessment's home page under the Recent Additions and Publications menus at *http://www.epa.gov/ncea* . A limited number of CD-ROM or paper copies will be available. Contact Ms. Ellen Lorang by phone (919-541-2771), fax (919-541-5078), or e-mail ( *lorang.ellen@epa.gov* ) to request either of these, and please provide your name, your mailing address, and the document title, “Integrated Science Assessment for Oxides of Nitrogen—Health Criteria” (EPA/600/R-08/071), to facilitate processing of your request. FOR FURTHER INFORMATION CONTACT: For technical information, contact Dennis Kotchmar, M.D., NCEA; telephone: 919-541-4158; facsimile: 919-541-5078; or e-mail: *kotchmar.dennis@epa.gov* or Thomas Luben, PhD, NCEA; telephone: 919-541-5762; or e-mail: *luben.tom@epa.gov* . SUPPLEMENTARY INFORMATION: Section 108(a) of the Clean Air Act directs the Administrator to identify certain pollutants that “may reasonably be anticipated to endanger public health and welfare” and to issue air quality criteria for them. These air quality criteria are to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air * * *.” Under section 109 of the Act, EPA is then to establish national ambient air quality standards (NAAQS) for each pollutant for which EPA has issued criteria. Section 109(d) of the Act requires subsequent periodic review and, if appropriate, revision of existing air quality criteria to reflect advances in scientific knowledge on the effects of the pollutant on public health and welfare. EPA is also to revise the NAAQS, if appropriate, based on the revised air quality criteria. Oxides of nitrogen are one of six principal (or “criteria”) pollutants for which EPA has issued air quality criteria. National ambient air quality standards (NAAQS) based on those criteria have been established for nitrogen dioxide (NO <sup>2</sup> ), an indicator for gaseous nitrogen oxides. Periodically, EPA reviews the scientific basis for these standards by preparing an Integrated Science Assessment
(ISA)and supplementary annexes, formerly called an Air Quality Criteria Document (AQCD). The ISA and supplementary annexes, in conjunction with additional technical and policy assessments, provide the scientific basis for EPA decisions on the adequacy of a current NAAQS and the appropriateness of new or revised standards. The Clean Air Scientific Advisory Committee (CASAC), an independent science advisory committee mandated by the Clean Air Act and part of the EPA's Science Advisory Board (SAB), is charged with independent, expert scientific review of EPA's draft ISAs. On December 9, 2005 (70 FR 73236), EPA formally initiated its current review of the criteria for Oxides of Nitrogen, requesting the submission of recent scientific information on specified topics. A draft of EPA's “Integrated Review Plan for the Primary National Ambient Air Quality Standard for Nitrogen Dioxide” was made available in February 2007 for public comment and was discussed by the Clean Air Science Advisory Committee (CASAC) via a publicly accessible teleconference consultation on May 11, 2007 (72 FR 20336). In February 2007 (72 FR 6238), a workshop was held to discuss, with invited scientific experts, initial draft materials prepared in the development of the ISA and supplementary annexes for oxides of nitrogen. The first external review draft of this ISA was released for public comment and review by the CASAC on August 31, 2007 (72 FR 50107), and was reviewed by CASAC at a public meeting held on October 24-25, 2007. The second draft of this ISA was released for public comment and review by the CASAC in March 2008 (73 FR 11916), and was reviewed by CASAC at a public meeting held on May 1-2, 2008. EPA has considered comments by CASAC and the public in preparing this final ISA. Dated: July 1, 2008. Rebecca M. Clark, Acting Director, National Center for Environmental Assessment. [FR Doc. E8-15726 Filed 7-10-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [FRL-8690-9] EPA Science Advisory Board Staff Office; Notification of a Public Teleconference Meeting of the Chartered Science Advisory Board AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: The EPA Science Advisory Board
(SAB)Staff Office announces a public teleconference meeting of the chartered SAB to:
(1)Conduct its quality review of the SAB draft report *SAB Advisory on the EPA Ecological Research Program Multi-year Plan;*
(2)have follow-up discussions of EPA's strategic research directions; and
(3)complete its discussions of science that supports EPA's disaster response programs. DATES: The meeting date is Monday, July 28, 2008, from 1 p.m. to 5 p.m. (Eastern Time). *Location:* The meeting will be conducted by telephone only. FOR FURTHER INFORMATION CONTACT: Any member of the public wishing to obtain general information concerning this public teleconference meeting should contact Mr. Thomas O. Miller, Designated Federal Officer (DFO), EPA Science Advisory Board (1400F), 1200 Pennsylvania Ave., NW., Washington, DC 20460; via telephone/voice mail:
(202)343-9982; fax:
(202)233-0643; or e-mail at *miller.tom@epa.gov.* General information concerning the EPA Science Advisory Board can be found on the SAB Web site at: *http://www.epa.gov/sab.* SUPPLEMENTARY INFORMATION: The SAB was established by 42 U.S.C. 4365 to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The SAB is a Federal advisory committee chartered under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C., App. The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies. Pursuant to the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given that the EPA SAB will hold a public teleconference meeting to discuss several issues and to conduct a quality review of the SAB Panel's draft *Advisory on the EPA Ecological Research Program Multi-year Plan.* *Background:*
(a)SAB Quality Review of the Draft SAB Report *Advisory on the EPA Ecological Research Program Multi-year Plan.* The Chartered Science Advisory Board will conduct a quality review of the draft SAB committee report on EPA's Ecological Research Multi-Year Plan prepared by the SAB's Ecological Processes and Effects Committee (EPEC). The draft report is in response to an EPA Office of Research and Development
(ORD)request that the SAB review the Agency's proposed Research Program Strategy and Multi-year Plan that focuses on research issues related to ecosystems and ecosystem services. The draft report is available on the SAB Web Site at: *http://yosemite.epa.gov/sab/sabproduct.nsf/0/EE66B20E1A20BBA18525734D005E6665?OpenDocument.*
(b)EPA Strategic Research Directions: The Science Advisory Board engaged with EPA in a continuing dialogue to evaluate and provide advice on the strategic directions for EPA's research program for the next five to fifteen years. This activity complements the annual SAB review of EPA's research budget, and permits a more critical evaluation of research programs than is possible during those research budget reviews. The SAB will continue its discussions at its July 28, 2008 meeting. Additional information on past discussions (e.g., October 3-5, 2007 meeting; see 72 FR 50105-50107) and other relevant information can be found on the EPA SAB Web site at: *http://yosemite.epa.gov/sab/sabproduct.nsf/36a1ca3f683ae57a85256ce9006a32d0/54b1d2e5f6dbb2b38525730c00624a96!OpenDocument* ).
(c)Environmental Disasters. The SAB is formulating advice to EPA aimed at strengthening science underlying EPA's preparation for and response to environmental disasters. The SAB previously discussed this topic at its meetings on December 12-14, 2006 (see 71 FR 67566), June 19-20, 2007 (see 72 FR 27308) and October 3-5, 2007 (see 72 FR 50105-50107). The SAB has drafted an advisory to the Administrator as a result of these discussions. Discussions of those comments will be completed during the SAB meeting on July 28, 2008. Additional information about this topic is available on the SAB Web site at: *http://yosemite.epa.gov/sab/sabproduct.nsf/02ad90b136fc21ef85256eba00436459/75e560f8a00949fa8525714c00454e95!OpenDocument.* *Availability of Meeting Materials:* The agenda and other materials in support of this meeting will be placed on the SAB Web site at *http://www.epa.gov/sab* in advance of this meeting. *Procedures for Providing Public Input:* Interested members of the public may submit relevant written or oral information for the SAB to consider during this teleconference. *Oral Statements:* In general, individuals or groups requesting time to make an oral presentation at a public SAB teleconference will be limited to three minutes, with no more than one-half hour for all speakers. At face-to-face meetings, presentations will be limited to five minutes, with no more than a total of one hour for all speakers. To be placed on the public speaker list, interested parties should contact Mr. Thomas Miller, DFO, in writing (preferably by e-mail), by July 21, 2008 at the contact information provided above. *Written Statements:* Written statements should be received in the SAB Staff Office by July 21, 2008, so that the information may be made available to the SAB for their consideration prior to this teleconference meeting. Written statements should be supplied to the DFO via e-mail to *miller.tom@epa.gov* (acceptable file format: Adobe Acrobat PDF, WordPerfect, MS Word, MS PowerPoint, or Rich Text files in IBM-PC/Windows 98/2000/XP format). *Accessibility:* For information on access or services for individuals with disabilities, please contact Mr. Thomas Miller at
(202)343-9982 or *miller.tom@epa.gov.* To request accommodation of a disability, please contact Mr. Miller, preferably at least 10 days prior to the meeting, to give EPA as much time as possible to process your request. Dated: July 8, 2008. Anthony F. Maciorowski, Deputy Director, EPA Science Advisory Board Staff Office. [FR Doc. E8-15798 Filed 7-10-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [FRL-8691-1] Meeting of the Total Coliform Rule Distribution System Advisory Committee—Notice of Public Meeting AGENCY: Environmental Protection Agency (EPA). ACTION: Notice. SUMMARY: Under Section 10(a)(2) of the Federal Advisory Committee Act, the United States Environmental Protection Agency
(EPA)is giving notice of a meeting of the Total Coliform Rule Distribution System Advisory Committee (TCRDSAC). The purpose of this meeting is to discuss the Total Coliform Rule
(TCR)revision and information about distribution systems issues that may impact water quality. The TCRDSAC advises and makes recommendations to the Agency on revisions to the TCR, and on what information should be collected, research conducted, and/or risk management strategies evaluated to better inform distribution system contaminant occurrence and associated public health risks. Topics to be discussed in the meeting include options for revising the Total Coliform Rule; for example, rule construct, monitoring provisions, system categories, action levels, investigation and follow-up, public notification, and other related topics. In addition, the Committee will discuss possible recommendations for research and information collection needs concerning distribution systems. DATES: The public meeting will be held on Wednesday, July 30, 2008 (8:30 a.m. to 6 p.m., Eastern Time (ET)) and Thursday, June 31, 2008 (8 a.m. to 3 p.m., ET). Attendees should register for the meeting by calling Kate Zimmer at
(202)965-6387 or by e-mail to *kzimmer@resolv.org* no later than July 25, 2008. ADDRESSES: The meeting will be held at St. Gregory Hotel, 2033 M Street, NW., Washington, DC 20036. FOR FURTHER INFORMATION CONTACT: For general information, contact Kate Zimmer of RESOLVE at
(202)965-6387. For technical inquiries, contact Sean Conley ( *conley.sean@epa.gov,*
(202)564-1781), Standards and Risk Management Division, Office of Ground Water and Drinking Water (MC 4607M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; fax number:
(202)564-3767. SUPPLEMENTARY INFORMATION: The meeting is open to the public. The Committee encourages the public's input and will take public comment starting at 5:30 p.m. on July 30, 2008, for this purpose. It is preferred that only one person present the statement on behalf of a group or organization. To ensure adequate time for public involvement, individuals interested in presenting an oral statement may notify Crystal Rodgers-Jenkins, the Designated Federal Officer, by telephone at
(202)564-5275, no later than July 25, 2008. Any person who wishes to file a written statement can do so before or after a Committee meeting. Written statements received by July 25, 2008, will be distributed to all members before any final discussion or vote is completed. Any statements received on July 28, 2008, or after the meeting will become part of the permanent meeting file and will be forwarded to the members for their information. Special Accommodations For information on access or accommodations for individuals with disabilities, please contact Crystal Rodgers-Jenkins at
(202)564-5275 or by e-mail at *rodgers-jenkins.crystal@epa.gov.* Please allow at least 10 days prior to the meeting to give EPA time to process your request. Dated: July 7, 2008. Cynthia C. Dougherty, Director, Office of Ground Water and Drinking Water. [FR Doc. E8-15844 Filed 7-10-08; 8:45 am] BILLING CODE 6560-50-P FEDERAL DEPOSIT INSURANCE CORPORATION Notice of Agency Meeting Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that the Federal Deposit Insurance Corporation's Board of Directors will meet in open session at 1 p.m. on Tuesday, July 15, 2008, to consider the following matters: *Summary Agenda:* No substantive discussion of the following items is anticipated. These matters will be resolved with a single vote unless a member of the Board of Directors requests that an item be moved to the discussion agenda. Disposition of minutes of previous Board of Directors' meetings. Summary reports, status reports, and reports of actions taken pursuant to authority delegated by the Board of Directors. *Discussion Agenda:* Memorandum and resolution re: Final Guidance: Supervisory Process of Capital Adequacy (Pillar 2) Related to the Implementation of the Basel II Advanced Capital Framework. Memorandum and resolution re: Notice of Proposed Rulemaking on Recordkeeping Requirements for Qualified Financial Contracts. Memorandum and resolution re: Final Covered Bond Policy Statement. The meeting will be held in the Board Room on the sixth floor of the FDIC Building located at 550 17th Street, NW., Washington, DC. This Board meeting will be Webcast live via the Internet at: *http://www.vodium.com/goto/fdic/boardmeetings.asp.* This service is free and available to anyone with the following system requirements: *http://www.vodium.com/home/sysreq.html (http://www.vodium.com).* Adobe Flash Player is required to view these presentations. The latest version of Adobe Flash Player can be downloaded at *http://www.macromedia.com/go/getflashplayer.* Installation questions or troubleshooting help can be found at the same link. For optimal viewing, a high-speed Internet connection is recommended. The Board meetings videos are made available on-demand approximately one week after the event. The FDIC will provide attendees with auxiliary aids (e.g., sign language interpretation) required for this meeting. Those attendees needing such assistance should call
(703)562-6067 (Voice or TTY), to make necessary arrangements. Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Executive Secretary of the Corporation, at
(202)898-7122. Dated: July 8, 2008. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. [FR Doc. E8-15849 Filed 7-10-08; 8:45 am] BILLING CODE 6714-01-P FEDERAL DEPOSIT INSURANCE CORPORATION Notice of Agency Meeting Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 1:30 p.m. on Tuesday, July 15, 2008, the Federal Deposit Insurance Corporation's Board of Directors will meet in closed session, pursuant to section 552b(c)(4), (c)(6), (c)(8), (9)(A)(ii), and (9)(B) of Title 5, United States Code, to consider matters relating to the Corporation's supervisory and corporate activities. The meeting will be held in the Board Room on the sixth floor of the FDIC Building located at 550 17th Street, NW., Washington, DC. Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Executive Secretary of the Corporation, at
(202)898-7122. Dated: July 8, 2008. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. [FR Doc. E8-15850 Filed 7-10-08; 8:45 am] BILLING CODE 6714-01-P FEDERAL RESERVE SYSTEM Government in the Sunshine; Meeting Notice Agency Holding the Meeting: Board of Governors of the Federal Reserve System. Previously Announced Time and Date of the Meeting: 10 a.m. on Monday, July 14, 2008. Changes in the Meeting: The discussion agenda title has changed from: Final Amendments to Regulation Z (Truth in Lending) to the new title of: Final Amendments to Regulation Z (Truth in Lending) Relating to Mortgage Lending and Proposed Conforming Amendments to Regulation C (Home Mortgage Disclosure). FOR MORE INFORMATION PLEASE CONTACT: Michelle Smith, Director, or Dave Skidmore, Assistant to the Board, Office of Board Members at 202-452-2955. SUPPLEMENTARY INFORMATION: You may call 202-452-3206 for a recorded announcement of this meeting; or you may contact the Board's Web site at *http://www.federalreserve.gov* for an electronic announcement. (The Web site also includes procedural and other information about the open meeting.) Dated: July 8, 2008. Robert deV. Frierson, Deputy Secretary of the Board. [FR Doc. 08-1429 Filed 7-9-08; 8:45 am]
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119 references not yet in our index
  • 25 CFR 11
  • Pub. L. 106-544
  • 38 Stat. 586
  • 18 USC 1152-1153
  • 21 CFR 1308
  • 28 CFR 524
  • 408 F. Supp. 2d 282
  • 18 USC 3521-3528
  • 28 CFR 545
  • 28 CFR 541
  • 29 CFR 1615
  • 73 FR 9065
  • Pub. L. 96-354
  • Pub. L. 93-112
  • Pub. L. 99-506
  • 100 Stat. 1830
  • Pub. L. 100-630
  • 102 Stat. 3312
  • Pub. L. 102-569
  • 106 Stat. 4430
  • Pub. L. 105-220
  • 112 Stat. 1203
  • 36 CFR 1194
  • 29 CFR 1614
  • 29 CFR 1630
  • 33 CFR 165
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
  • 40 CFR 63
  • 40 CFR 9
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 49 CFR 262
  • Pub. L. 109-59
  • 49 CFR 20154
  • 23 CFR 140
+ 79 more
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C.F.R.§ 11.100
U.S.C.§ 301
U.S.C.§ 2
U.S.C.§ 13
F. Supp.408 F. Supp. 2d 282
F. App'x81 F.3d 179
F. App'x20 F.3d 1177
Cites 205 · showing 12Cited by 0 across 0 sources
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