I. Background The Energy Policy Act of 2005

On August 8, 2005, the President signed into law the EPAct of 2005 Pub. L. No. 109-58,119 Stat. 594 (2005). Section 656 of the EPAct added Section 170I to the AEA, as amended, 42 U.S.C. 2210i, and requires that: (a) A system be established by the Commission to ensure that materials transferred or received in the United States, by any party, pursuant to an import or export license issued by NRC, are accompanied by a manifest describing the type and amount of materials; (b) each individual receiving or accompanying the transfer of materials shall be subject to a security background check conducted by appropriate Federal entities; and (c) the Commission issue regulations, within one year after enactment of the EPAct, identifying radioactive materials or classes of individuals that, consistent with the protection of the public health and safety and the common defense and security, are appropriate exceptions to the requirements in Section 170I of the AEA.

In preparing the proposed rule to implement Section 656 (71 FR 51534; August 30, 2006), the NRC determined that, based on existing requirements for shipping papers for radioactive materials already in place in Department of Transportation regulations and incorporated by reference in NRC regulations in 10 CFR part 71, an appropriate system is already established to ensure that shipments of radioactive materials, that would be affected by Section 656, are accompanied by papers ( i.e. , a manifest) appropriately describing the materials being shipped. Thus, NRC did not include any additional requirements for manifesting of radioactive material shipments in the proposed rule.

In addition, the NRC determined that the most appropriate and comprehensive approach for establishing requirements for security background checks is as part of the broader considerations of NRC's rulemaking to implement Section 652 of the EPAct. Section 652 mandates the Commission to require fingerprinting and criminal history record checks for any individual who is permitted unescorted access to risk-significant radioactive material. The individuals referred to under Section 656 are a subgroup ( i.e. , those transferring radioactive material pursuant to an export or import license) of the larger group of individuals at a licensed facility, with unescorted access to radioactive material, and will be covered by the comprehensive Section 652 rulemaking. The Section 652 proposed rule is currently in preparation and its schedule calls for issuance of a proposed rule in the Fall of 2007 and a final rule in the Fall of 2008.

While the Section 652 rulemaking is being conducted, NRC has a regulatory framework for security background checks through an extensive system of Orders issued during 2002-2006 that includes requirements for background checks, including fingerprinting for criminal history checks, for unescorted access to radioactive material for certain facilities which it licenses. NRC has also issued Orders to licensees for shipment of radioactive material in quantities of concern (RAMQC). The purpose of these Orders has been to impose certain security measures to supplement existing regulations at 10 CFR part 20, and equivalent Agreement State regulations, for securing licensed materials from unauthorized access, with the intent of providing the NRC with reasonable assurance that the common defense and security is protected. The Orders note that conditions for unescorted access to risk-significant sources of radioactive material are governed by an appropriate need-to-know and by background checks as input to a determination concerning the trustworthiness and reliability of individuals who have access to the material. Most recently, in October 2006, NRC issued Orders to pool-type irradiator licensees, manufacturing and distribution (M&D) licensees, and licensees making shipments of RAMQC, to specifically require fingerprinting and criminal history checks for unescorted access to the risk-significant sources of radioactive material at their facilities.

Consistent with Section 656(b) of the EPAct, the Commission proposed to amend NRC's regulations to except from the security background check requirements of Section 170I of the AEA, as amended, licensees who have not received NRC Orders containing requirements for background checks for trustworthiness and reliability, that include fingerprinting and criminal history record checks, as a prerequisite for unescorted access to risk-significant radioactive materials. As noted above, Orders restricting access based on fingerprinting and criminal history record checks have been issued for pool-type irradiator licensees, M&D licensees, and licensees who make shipments of RAMQC. These licensees can use the provisions of their existing Orders (or new or amended Orders) to comply with Section 170I. Also, if additional Orders for fingerprinting and criminal history checks for unescorted access to radioactive material are issued to licensees other than those noted here, licensees who receive any such new Orders would no longer be excepted from the security background check requirements of Section 170I.

The rationale for the exceptions is that it is consistent with the system of Orders, issued to certain licensees, that the NRC has instituted for protection of the common defense and security. The materials possessed and transferred by the licensees who have received Orders have been deemed, during the process of issuance of the Orders, to be appropriate for immediately requiring certain security measures for unescorted access based on potential higher risk resulting from malevolent use of those materials.

The proposed rule was published in the Federal Register on August 30, 2006 (71 FR 51534) as a proposed new § 73.28 in 10 CFR part 73.

The public comment period closed on September 29, 2006. In response to the request for comments, NRC received two comment responses, one from the Organization of Agreement States (OAS) and one from the Nuclear Energy Institute (NEI).

The comment response from the OAS summarized the content of the NRC's proposed rulemaking and its effect on Agreement States, including that the proposed Agreement State Compatibility Category of the proposed rule would be “NRC.” The comment response from the OAS concluded by stating that the NRC approach in the rulemaking seemed reasonable to the OAS Executive Board.

The comment response letter from NEI stated that NEI supports the proposed rule as drafted. However, NEI also stated that there were two areas of confusion regarding the applicability of the rulemaking. In particular, NEI noted that there are a number of power reactor licensees that were not issued additional orders, but that have personnel who come in contact with radioactive materials in transit and who are not covered by existing rules in 10 CFR 73.57. Particularly noted were personnel in shipping and receiving operations located outside of the protected area who are considered outside of the nuclear power facility and do not require access to Safeguards Information. The second area of confusion related to a NEI concern as to where this Section 656 rulemaking will end and where the referenced Section 652 rulemaking, due for issuance in late 2007, will start.

With regard to the first point raised by NEI, the Supplementary Information in the Federal Register Notice, issuing the proposed rule, stated that this Section 656 rulemaking is relying upon the framework of the existing system of NRC Orders, either in place or to be put into place, as the basis for codifying exceptions. This allows for a consistent approach for radioactive materials which NRC considers appropriate, at this time, for exception from the requirements of Section 170I of the AEA as amended by the EPAct. The materials possessed and transferred by licensees who have received Orders have been deemed, during the process of issuance of the Orders, to be appropriate for immediately requiring certain security measures for unescorted access based on potential higher risk resulting from malevolent use of those materials. Orders for fingerprinting and criminal history checks for persons at licensed facilities shipping RAMQC were issued in October 2006. As noted previously, the Section 652 rulemaking will take a more comprehensive approach in establishing requirements for security background checks for licensees, and for licensee employees, for unescorted access to radioactive material. To the extent that personnel at a nuclear power plant handle risk-significant material and are not currently covered by regulation and/or order with regard to background checks and fingerprinting, consideration can be given to including such licensee personnel in NRC's framework of orders. If such additional Orders are issued, those licensees who have not previously received any such Orders would no longer be excepted from the security background check requirements of Section 170I, under the provisions of this final rule.

With regard to the second point raised by NEI, the Supplementary Information in the proposed rule notes that the NRC intends to address background checks and fingerprinting for criminal history record checks for licensees in a more comprehensive manner under the rulemaking to implement Section 652 of the EPAct. One of the elements of that rulemaking, as mandated by Section 652(B)(i)(ll), will be determining requirements for access to quantities of radioactive material, subject to regulation by the Commission, that the Commission determines to be of such significance to the public health and safety or to the common defense and security as to warrant fingerprinting and background checks. The requirements for exceptions in this Section 656 rulemaking were issued as part of a mandate of Section 656 of the EPAct for a limited subset of licensee employees. If necessary, the requirements now codified at 10 CFR 73.28 will be revisited, and may be amended and/or superseded by the more comprehensive Section 652 rulemaking.

After review of the public comments, the NRC has decided to make final the approach in the August 30, 2006, proposed rule (i.e., to amend NRC's regulations to except from the security background check requirements of Section 170I those licensees that have not received NRC Orders restricting unescorted access to radioactive materials to individuals who have undergone background checks, for trustworthiness and reliability, that include fingerprinting and criminal history record checks). As of October 2006, Orders for fingerprinting and criminal history checks for unescorted access to radioactive materials have been issued to pool-type irradiator licensees, M&D licensees, and licensees who make shipments of RAMQC. Under the provisions of the final rule, if additional Orders for fingerprinting and criminal history checks for unescorted access to radioactive material are issued to licensees other than those noted above, licensees who receive any such new Orders would no longer be excepted from the security background check requirements of Section 170I of the AEA.

New § 73.28 has not been revised from the wording in the proposed rule and continues to except licensees from the security background check provisions of Section 170I of the AEA if they have not received Orders from the NRC containing requirements for background checks for trustworthiness and reliability that include fingerprinting and criminal history checks as a prerequisite for unescorted access to radioactive materials. Licensees subject to Orders are not excepted from the security background check provisions, and would use the requirements in their existing Orders to comply with Section 170I of the AEA.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, NRC is indicating specific exceptions to the requirements of Section 656 of the EPAct. This action does not constitute the establishment of a standard that establishes generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs,” which became effective on September 3, 1997 (62 FR 46517), NRC program elements (including regulations) are placed into four compatibility categories (Compatibility Category A through D). In addition, NRC program elements also can be identified as having particular health and safety significance or as being reserved solely to NRC.

The amendment to 10 CFR part 73 is a program element designated “NRC” based on implementation of the procedure in NRC's Management Directive 5.9, “Adequacy and Compatibility of Agreement States.” The requirements in this amendment are limited to providing exceptions to requirements in Section 170I of the AEA and are based on a system of Orders that were developed under NRC's authority to protect the common defense and security which are areas of exclusive NRC regulatory authority and cannot be relinquished to the Agreement States. Therefore, the requirements of this amendment should not be adopted by the Agreement States.

NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(3)(ii) as a categorical exclusion. Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

This final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq .).

Existing requirements were approved by the Office of Management and Budget, approval number 3150-0002.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

A regulatory analysis has not been prepared for this regulation because it relieves restrictions and does not impose any additional burdens on licensees.

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities. The amendment does not impose any additional burdens on licensees.

NRC has determined that the backfit rule (§§ 50.109, 70.76, 72.62, or 76.76) does not apply to this final rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required.

In accordance with the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.

Section 7(a) of the Federal Home Loan Bank Act (Bank Act) (12 U.S.C. 1427(a)), authorizes the Finance Board to appoint directors to the board of each Bank. Section 7(f)(2) (12 U.S.C. 1427(f)(2)) authorizes the Finance Board to fill any vacancy in an appointive directorship for the remainder of the unexpired term. The current rule implementing this statutory authority provides only for the selection of appointive directors in the sole discretion of the Finance Board, but lacks any procedures for accomplishing this. See 12 CFR 915.10(a). The Finance Board has determined that adopting procedures for the selection of appointive directors will enhance its ability to identify and appoint well-qualified individuals to serve as Bank directors. Accordingly, the Finance Board is amending § 915.10 to adopt procedures under which the board of directors of each Bank will submit to the Finance Board a list of individuals that includes information regarding each individual's eligibility and qualifications to serve as a Bank director. The Finance Board will use the lists provided by each Bank to select well-qualified individuals to serve on the Bank's board of directors.

An effective board of directors is an important element in maintaining the safety and soundness of a Bank and ensuring that it serves its housing and community finance mission. The Banks and other interested parties with knowledge of the district likely will be familiar with individuals who have the background and skills necessary to serve on the board of a large financial institution such as a Bank. The Finance Board believes that the appointment process will be enhanced by allowing those most familiar with the resources in a Bank's district to play a greater role in identifying a pool of well-qualified individuals from which the Finance Board can appoint Bank directors. Accordingly, the rule seeks to utilize the local and regional knowledge of the Bank, as well as of any other interested parties, in seeking out or otherwise identifying individuals who have the background and skills necessary to serve as an effective Bank director.

Under the rule, the Banks are responsible at the initial stages of the selection process for identifying potential appointive directors, assessing their eligibility and qualifications, and nominating them to the Finance Board. In doing so, the Finance Board expects each Bank to assess the appropriate experience and abilities its board must possess in order to operate effectively. When the Bank's board identifies potential appointive directors, it will perform a preliminary assessment of their qualifications prior to sending a list of nominations to the Finance Board. The board's preliminary assessment should include, but is not limited to, a review of the individuals' executed eligibility form and their community reputation. In the case of an individual seeking to be designated as a community interest director, the Finance Board expects that each Bank will assess the individual's prior experience in serving the consumer and community interests specified in the Bank Act. As noted below, in order to allow for a well-diversified applicant pool, the rule permits any interested party to submit to the Banks the names of prospective directors, which the Banks will evaluate based on each individual's qualifications.

Section 915.10(a)(1) requires the board of directors of each Bank annually, on or before October 1st, to submit to the Finance Board a list of nominees who meet the statutory eligibility requirements and are otherwise well-qualified for the appointive directorships that will become vacant at the end of that calendar year. Determining who to include on the list is left to the boards of directors of the Banks, which may exercise discretion in determining how to identify and present individuals to the Finance Board. The board should consider each individual in light of his or her background and experience as it relates to being a director of a Bank, and should select nominees based on the totality of their qualifications. Section 915.10(a)(3) of the rule further requires that the list of individuals a Bank submits include 2 times the number of appointive directorships that are to be filled that year. Under § 915.15(b), the Finance Board has the discretion to require a Bank to provide information about additional eligible and well-qualified individuals.

Along with the list of eligible and qualified individuals, the Bank must provide the original executed appointive director application form on which each individual describes in detail the business, financial, housing, community and economic development, or other leadership experiences that qualify him or her to serve on the board of the Bank. A copy of the form is attached as an exhibit.

Section 915.10(a)(2) extends this procedure to filling vacancies that arise before the completion of a full term, by requiring the board of directors of the Bank to submit a list of 2 individuals for any appointive directorship that becomes vacant prior to the end of its term. The rule requires a Bank to act promptly to provide the list to fill the remaining term of a vacant appointive directorship.

Section 915.10(b) provides that the Finance Board has sole discretion to appoint individuals to the boards of the Banks. In exercising this discretion, the Finance Board intends to look principally to the qualifications of the nominees, and will appoint only those individuals who have demonstrated that they possess the experience necessary to serve effectively on the board of a large and sophisticated financial institution with an important housing finance and economic development mission, such as a Bank. By relying on the demonstrated qualifications of the nominees, the Finance Board expects that any individuals it appoints will possess the experience and skills necessary to serve as the independent voices on the board of directors, a role that can best be played by the appointive directors of the Banks.

The rule also makes clear that the Finance Board may decline, in its sole discretion, to appoint any of the individuals on the initial list submitted by the Bank. If this occurs, the Finance Board can direct a Bank to submit the names of additional eligible and well-qualified individuals for the Finance Board's consideration.

To ensure a diverse pool of prospective directors, § 915.10(c) allows any individual who is interested in being appointed to the board of a Bank to submit to the Bank an executed appointive director application form. The rule also allows any interested party to make recommendations to a Bank regarding individuals who are well-qualified to serve on the board of the Bank, but requires any such individual to submit to the Bank the same application form before the Bank may consider that person for inclusion in the list it submits to the Finance Board. The rule does not provide for any individuals to submit applications directly to the Finance Board. The board of the Bank has discretion to determine which individuals it submits to the Finance Board for consideration, although the Finance Board expects that the Bank's board will give due consideration to all persons seeking to be nominated to the board.

Section 915.10(d) is substantially similar to § 915.10(b) of the current rule. It has been revised to delete outdated language that addressed how the Finance Board would stagger the terms of appointive directors with terms commencing in 2001 and 2002, to achieve a one-third staggering of the boards of directors, as required by section 7(d) of the Bank Act (12 U.S.C. 1427(d)). Because the Finance Board has adjusted the terms of office for those directorships and has established 3 approximately equal classes of directors at each of the Banks that language is no longer necessary and is deleted.

Section 915.10(e) is a temporary provision for filling appointive directorships that are vacant on January 1, 2007. The rule requires the boards of directors of the Banks to submit the list of eligible and qualified individuals to the Finance Board on or before March 31, 2007, instead of October 1, 2007. In all other respects, the changes made by the interim final rule will apply. For these directorships the Finance Board intends to consider nominations as they are received, and the rule thus does not require a Bank to submit nominations for all vacancies at one time.

The notice and comment procedure required by the Administrative Procedure Act is inapplicable to this interim final rule because it is a rule of agency procedure. See 5 U.S.C. 553(b)(3)(A). In addition, it is in the public interest to fill appointive directorships at the Banks with well qualified individuals as soon as it is practicable to do so. See 5 U.S.C. 553(b)(3)(B). However, because the Finance Board believes that public comments are valuable, it encourages comments on this interim final rule, and will consider all comments received on or before February 23, 2007 in promulgating a final rule.

For the reasons stated in part III above, the Finance Board for good cause finds that the interim final rule should become effective on January 24, 2007. See 5 U.S.C. 553(d)(3).

The appointive director application form is part of the information collection entitled “Federal Home Loan Bank Directors.” Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the Office of Management and Budget (OMB) has assigned control number 3069-0002, which is due to expire on November 30, 2007. The Finance Board and the Banks use the information contained in the application form to determine whether prospective appointive Bank directors satisfy the statutory and regulatory eligibility requirements and are well qualified to serve as a Bank director. Only individuals meeting these requirements may serve as Bank directors. See 12 U.S.C. 1427. The interim final rule does not make substantive or material modifications to the “Federal Home Loan Bank Directors” information collection. Consequently, the Finance Board has not submitted any information to OMB for review.

The Finance Board is adopting this procedural amendment in the form of an interim final rule and not as a proposed rule. Therefore, the provisions of the Regulatory Flexibility Act do not apply. See 5 U.S.C. 601(2) and 603(a).

On May 5, 2004, the SBA published an interim final rule that created the Service Disabled Veteran Owned (SDVO) Small Business program, 69 FR 25262. In that rule, the SBA added paragraph (b) to § 125.6, to address subcontracting limitations for SDVO small businesses. As a result of this new paragraph (b), the SBA redesignated then-current paragraphs (b), (c), (d), (e), (f), and (g) as paragraphs (c), (d), (e), (f), (g), and (h), respectively.

On May 21, 2004, the SBA published a final rule amending its size regulations, as well as the regulations addressing SBA's government contracting programs (69 FR 29192). In its final rule, the SBA amended § 125.6(g) to state that:

A few days later, on May 24, 2004, the SBA published amendments to its size and HUBZone regulations. 69 FR 29411. In the final rule, the SBA redesignated paragraphs (c), (d), (e), (f), (g), and (h) of § 125.6 as paragraphs (e), (f), (g), (h), (i), and (j) (because the SBA had added two new paragraphs—(c) and (d)—to address changes to the HUBZone program's subcontracting limitations on construction contracts). Id. at 29420. Paragraphs (g) and (h) became paragraphs (i) and (j). Therefore, except for the term “team,” both paragraphs are now essentially identical. The regulations now state:

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

We invite interested persons to take part in this rulemaking by sending written data, views, or comments. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of the written comments. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want us to let you know we received your comments on these special conditions, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On June 15, 2006, Piper Aircraft, Inc., 2926 Piper Drive, Vero Beach, Florida 32960, made an application to the FAA for a supplemental type certificate for a type design change for the Piper PA-32R-301T, Saratoga II TC, and PA-32-301FT, Piper 6X. The PA-32 is currently approved under TC No. A3SO. The proposed modification incorporates a novel or unusual design feature, such as digital avionics consisting of an EFIS that is vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR 21, 21.101, Piper Aircraft, Inc. must show that the Piper PA-32 aircraft, as changed, meets the original certification basis for the airplane, as listed on Type Data Sheet A3SO; the additional certification requirements added for the G1000 system, exemptions, if any; and the special conditions adopted by this rulemaking action.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38 after public notice and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model already included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.

Piper Aircraft, Inc. plans to incorporate certain novel and unusual design features into the Piper PA-32R-301T, Saratoga II TC, and the PA-32-301FT, Piper 6X, airplanes for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include EFIS, which are susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.

Protection of Systems from High Intensity Radiated Fields (HIRF): Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

On December 13, 2004, the General Electric Company (GE) applied to the FAA for a new type certificate for the GEnx series engine models. On May 24, 2005, GE submitted a revised application for a type certificate that added models and changed the model designation nomenclature. The turbofan engine models to be certified are GEnx-1B54, GEnx-1B58, GEnx-1B64, GEnx-1B67, GEnx-1B70, GEnx-1B70/72, GEnx-1B70/75, GEnx-1B72, and GEnx-1B75. For these GEnx engine models, GE plans to use carbon graphite composite fan blades incorporating metal leading and trailing edges that use geometry, composite structural materials, and manufacturing methods very similar to those used for previously certified GE90-series engine fan blade designs.

In lieu of direct compliance to 14 CFR section (§ ) 33.94(a)(1) for the GEnx fan blades, the FAA proposed that GE comply with new special conditions that retain the basic requirements of the original SC-33-ANE-08 created for the GE90-76B, -77B, -85B , -90B, -94B model certification program, and then successfully applied to the GE90-110B1, -113B, and -115B model certification program.

These GE90 series engine model fan blades are manufactured using carbon graphite composite material that also incorporates metal leading and trailing edges. These unusual and novel design features result in the fan blades having significant differences in material property characteristics when compared to conventionally designed fan blades using non-composite metallic materials. GE submitted data and analysis during the GE90-76B, -77B, -85B, -90B, -94B model certification program showing the likelihood that a composite fan blade will fail below the inner annulus flow path line is highly improbable. GE, therefore, questioned the appropriateness of the requirement contained in § 33.94(a)(1) to show blade containment after a failure of the blade at the outermost retention feature.[SUBJECT][AGY][HED]AGENCY:[P][DATES][HED]DATES:[P][ADD][HED]ADDRESSES:[P][FURINF][HED]FOR FURTHER INFORMATION CONTACT:[P][SUPLINF][HED]SUPPLEMENTARY INFORMATION:[P]

The FAA determined that the requirements of § 33.94(a)(1) are based on metallic blade characteristics and service history and were not appropriate for the unusual design features of the composite fan blade design planned for the GE90-76B, -77B, -85B, -90B, -94B model turbofan engines. The FAA determined that a more realistic blade retention test would be achieved with a fan blade failure at the inner annulus flow path line (the complete airfoil only) instead of the outermost blade retention feature as currently required by § 33.94(a)(1).

The FAA, therefore, issued special conditions SC-33-ANE-08 on February 1, 1995 for the GE90-76B, -77B, -85B, -90B, -94B engine models. These special conditions defined additional safety standards for the carbon graphite composite fan blades that were appropriate for the unusual design features of those fan blades, and that were determined to be necessary to establish a level of safety equivalent to that established by the intent of the airworthiness standards of § 33.94(a)(1). The FAA later determined that these special conditions continued to be appropriate for the amended type certificate applied to the GE90-110B1, -113B, and -115B engine models. The FAA has also concluded that these same special conditions, with some additional enhancements, continue to be appropriate for the GEnx model engines.

Under the provisions of 14 CFR 21.17, GE must show that the GEnx series turbofan engine models meet the requirements of applicable provisions of part 33 in effect on the date of the application for the type certificate. The FAA has determined that the applicable airworthiness regulations in part 33 do not contain adequate or appropriate safety standards for the GEnx series turbofan engine models because of its novel and unusual fan blade design features. Therefore, these special conditions are prescribed under the provisions of 14 CFR 11.19 and 21.16, and will become part of the type certification basis for GEnx engine in accordance with § 21.17(a)(2).

As discussed above, these special conditions apply only to the GEnx series turbofan engine models GEnx-1B54, GEnx-1B58, GEnx-1B64, GEnx-1B67, GEnx-1B70, GEnx-1B70/72, GEnx-1B70/75, GEnx-1B72, and GEnx-1B75. If the type certificate for those models is amended later to include any other models that incorporate the same novel or unusual fan blade design features, these special conditions would apply to the other models under the provisions of § 21.101(a)(1).

The GEnx-1B54, -B58, -1B64, -1B67, -70B, -1B70/72, -1B70/75, -72B and -75B engine models will incorporate fan blades to be manufactured using carbon graphite composite material that incorporates metal leading and trailing edges. The FAA has conducted that these carbon graphite composite fan blades are novel and unusual compared to the metallic fan blade technology envisioned in the part 33 standards and thus warrant these special conditions.

The FAA has also determined that the composite fan blade design and construction presents factors other than the expected location of a blade failure that must be considered. Tests and analyses must account for the effects of in-service deterioration of, manufacturing and materials variations in, and environmental effects on, the composite material. Tests and analyses must also show that a lightning strike on a composite fan blade will not result in a hazardous condition to the aircraft and that the engine will continue to meet the requirements of § 33.75.

Therefore, due to the close similarity of the GEnx models series fan blade design to the previously certified GE90 model series fan blade design, the FAA is issuing similar special conditions as part of the type certification basis for the GEnx engine models in lieu of direct compliance to § 33.94(a)(1). These special conditions define the additional requirements that the Administrator considers necessary to establish a level of safety equivalent to that which would be established by direct compliance to the airworthiness standards of § 33.94(a)(1).

Notice of Proposed Special Conditions, Docket No. NE127; Notice No. 33-06-01-SC, was published in the Federal Register on November 17, 2006 (71 FR 66888). We received no comments on the proposed special conditions. After a careful review of the applicable data, the FAA has determined that air safety and the public interest require the adoption of these special conditions as proposed.

This action affects only the carbon fiber composite fan blade design features on the GEnx series turbofan engine models GEnx-1B54, GEnx-1B58, GEnx-1B64, GEnx-1B67, GEnx-1B70, GEnx-1B70/72, GEnx-1B70/75, GEnx-1B72, and GEnx-1B75. It is not a rule of general applicability, and it affects only the General Electric Company which has applied to the FAA for certification of these fan blade design features.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-8-55, DC-8F-54, and DC-8F-55 airplanes; and Model DC-8-60, DC-8-70, DC-8-60F, and DC-8-70F series airplanes; was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on July 25, 2006 (71 FR 42062). That action proposed to require a one-time inspection for previous repairs of the aft fuselage skin panel at the longeron 28 skin splice; repetitive inspections for cracks of the same area; related investigative and corrective actions; and reporting inspection findings to the manufacturer. That action also proposed to provide optional actions for extending the repetitive inspection intervals.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

Air Transport Association (ATA), on behalf of one of its members, UPS, does not agree with the inspection threshold of 12 months for airplanes that have accumulated 24,000 total flight cycles or more as of the effective date of the AD, as specified in paragraph (a)(2) of the supplemental NPRM. The commenters note that all U.S.-registered McDonnell Douglas Model DC-8 airplanes are now freighters, which typically have low cycle utilization. UPS states that, out of a fleet of 47 airplanes, it has found only two instances of cracking in the subject area. The commenter believes that, based on these facts, the 24-month threshold indicated in paragraph (a)(1) of the supplemental NPRM should apply to all airplanes. The commenter believes that changing the threshold would have no adverse effect on airplane safety.

We disagree with the request to lengthen the inspection threshold. In developing an appropriate compliance time for this action, we considered the low utilization rate as one factor. Other factors we considered were a crack finding on an airplane that had accumulated 27,072 total landings, normal scatter associated with fatigue initiation, input from the manufacturer, the difficulty of the inspection, and the urgency associated with the subject unsafe condition. However, according to the provisions of paragraph (f) of the final rule, we may approve requests to adjust the compliance time if the request includes data that prove that the new compliance time would provide an acceptable level of safety. We have not changed the AD in this regard.

The Modification and Replacement Parts Association (MARPA) states that, typically, airworthiness directives are based on service information originating with the type certificate holder or its suppliers. MARPA adds that manufacturer service documents are privately authored instruments generally having copyright protection against duplication and distribution. MARPA notes that when a service document is incorporated by reference into a public document, such as an airworthiness directive, it loses its private, protected status and becomes a public document. MARPA adds that if a service document is used as a mandatory element of compliance, it should not simply be referenced, but should be incorporated into the regulatory document; by definition, public laws must be public, which means they cannot rely upon private writings. MARPA is concerned that the failure to incorporate essential service information could result in a court decision invalidating the AD.

MARPA adds that incorporated by reference service documents should be made available to the public by publication in the Docket Management System (DMS), keyed to the action that incorporates them. MARPA notes that the stated purpose of the incorporation by reference method is brevity, to keep from expanding the Federal Register needlessly by publishing documents already in the hands of the affected individuals; traditionally, “affected individuals” means aircraft owners and operators, who are generally provided service information by the manufacturer. MARPA adds that a new class of affected individuals has emerged, since the majority of aircraft maintenance is now performed by specialty shops instead of aircraft owners and operators. MARPA notes that this new class includes maintenance and repair organizations, component servicing and repair shops, parts purveyors and distributors, and organizations manufacturing or servicing alternatively certified parts under section 21.303 (“Parts Manufacturer Approval”) of the Federal Aviation Regulations (14 CFR part 21). MARPA adds that the concept of brevity is now nearly archaic as documents exist more frequently in electronic format than on paper. Therefore, MARPA asks that the service documents deemed essential to the accomplishment of the NPRM be incorporated by reference into the regulatory instrument, and published in DMS.

We do not agree that documents should be incorporated by reference during the NPRM phase of rulemaking. The Office of the Federal Register (OFR) requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the document necessary for the accomplishment of the requirements mandated by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information.

Additionally, we do not publish service documents in DMS. We are currently reviewing our practice of publishing proprietary service information. Once we have thoroughly examined all aspects of this issue, and have made a final determination, we will consider whether our current practice needs to be revised. However, we consider that to delay this AD action for that reason would be inappropriate, since we have determined that an unsafe condition exists and that the requirements in this AD must be accomplished to ensure continued safety. Therefore, we have not changed the AD in this regard.

We have changed the cost estimate to include estimated costs for all required actions, including the repetitive inspections and the repair.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 508 airplanes of the affected design in the worldwide fleet. The FAA estimates that 244 airplanes of U.S. registry are affected by this AD. The average labor rate is $80 per work hour.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. The streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

The Direction Genorale de L'Aviation Civile (DGAC), which is the aviation authority for France, has issued AD No. F-2005-080, Issue date: May 25, 2005, (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products.

You may obtain further information by examining the MCAI in the AD docket.

Reims Aviation S.A. has issued REIMS AVIATION INDUSTRIES Service Bulletin No. F406-58, Rev. 1, dated October 27, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might have also required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements take precedence over those copied from the MCAI.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because undetected cracks in the pulley bracket could result in rudder control failure. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2006-26694; Directorate Identifier 2006-CE-91-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

On November 15, 2006, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain EXTRA Flugzeugproduktions-und Vertriebs-GmbH (EXTRA) Models EA-300, EA-300S, EA-300L, and EA-300/200 airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on November 22, 2006 (71 FR 67499). The NPRM proposed to supersede AD 2002-21-11, Amendment 39-12917 (67 FR 65479, October 25, 2002), with a new AD that would require you to do the following:

• Inspect the upper longeron at the horizontal stabilizer attachment for cracks;

• Reinforce the upper longeron in the area of the horizontal stabilizer attachment; and

• Install V-tubes to reinforce fuselage frame underneath the horizontal stabilizer attachment bracket on Models EA-300S and EA-300L airplanes only.

We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

EASA AD No. 2006-0281, dated September 14, 2006, and EXTRA Service Bulletin No. 300-2-95, Issue: F, Dated: July 10, 2006, allow 50-hour repetitive inspections of the horizontal stabilizer attachment with the option of installing the modification kits as a terminating action for the repetitive inspections for certain affected airplanes. This AD does not allow continued repetitive inspections.

The FAA has determined that long-term continued operational safety is better assured by design changes that remove the source of the problem rather than by repetitive inspections or other special procedures.

We estimate that this AD affects 134 airplanes in the U.S. registry.

We estimate the following costs to do the inspection:

We estimate the following costs to do the modifications:

The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to Pratt & Whitney PW2000 series turbofan engines. We published the proposed AD in the Federal Register on August 3, 2006 (71 FR 43997). That action proposed to require a onetime focused visual and FPI of 21 suspect PW2000 8th stage HPC drum rotor disk assemblies.

You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

Northwest Airlines and Air Transport Association claim that the proposed AD is redundant to existing requirements in the engine manual, and would only put an additional administrative burden on the operators. They further state that existing AD 2005-18-03 (enhanced inspection of critical rotating parts) already requires a focused FPI of the drum rotor disk and includes the area of question on the 8th stage disk. The commenters point out that the visual inspection referenced in Pratt & Whitney Alert Service Bulletin (ASB) No. PW2000 A72-706, dated February 17, 2006 requires that any disk damage be within the limits in the engine manual visual inspection.

We do not agree. The intent of this AD is to require inspection of the HPC 8th stage disk when the HPC rotor assembly is exposed but with compressor blades installed. The requirements in this AD are more restrictive than the requirements of AD 2005-18-03, which only requires inspection when the HPC rotor is removed from the HPC module and disassembled to the piece-part level with compressor blades removed.

For clarification, we revised the AD compliance section to state that the 8th stage HPC drum rotor disk assembly is a rotor with compressor blades installed.

Northwest Airlines and Air Transport Association state that the proposed AD is not clear if the NDIPs referenced in the Pratt & Whitney ASB No. PW2000 A72-706, dated February 17, 2006, are mandatory.

We agree. We clarified the AD by splitting up the information needed in paragraph (f), into subparagraphs. We also clarified the AD by specifying to use paragraphs 3., 3.A., and 3.B., of the Accomplishment Instructions of Pratt & Whitney ASB No. PW2000 A72-706, dated February 17, 2006, to use NDIP 1096, dated January 19, 2006, and to use NDIP 1095, dated January 12, 2006.

Northwest Airlines states that the AD is not required, since all affected parts will be scrapped at exposure. The commenter states that since most of the affected parts in the field are likely to have very few cycles remaining, the parts will be retired upon their next disassembly.

We do not agree. The estimated number of cycles on the affected 8th stage disks currently in service ranges from about 13,500 cycles to 19,000 cycles. The current life limit of the 8th stage disk is 20,000 cycles. Therefore, some of the affected 8th stage disks probably will be returned to service after a shop visit. Affected parts with very few cycles remaining and voluntarily removed from service, will not require inspection or incur any inspection cost.

The National Transportation Safety Board (NTSB) supports the need for a onetime focused visual and FPI inspection of the HPC 8th stage disk. However, the NTSB recommends that the compliance time be reduced due to unknown factors from the disk failure investigation (failure location striation count) and the disk's demonstrated lack of damage tolerance.

We do not agree. The finite element structural analysis performed by Pratt & Whitney for the 8th stage disk failure (PW2037 engine uncontained 8th stage HPC drum rotor disk assembly failure event, March 10, 2005,) correlate well with results from the Materials & Processes Engineering Lab measurements. The Lab measurements were of the fatigue striation counts from the failed disk. Based on the failure analysis and the manufacturing records review of the 8th stage disk, a risk analysis determined that an acceptable level of safety will be maintained for the compliance described in the AD.

Modification and Replacement Parts Association (MARPA) states that the Pratt & Whitney service information referenced in the proposed AD should be incorporated by reference for the AD to be considered legal.

We agree. Paragraph (i) of this AD incorporates by reference the necessary service information. The proposed AD did not contain the incorporation by reference paragraph (i), because it is only a notice of proposed rulemaking.

MARPA states that the Pratt & Whitney service information to be incorporated by reference in the AD, should be published in the DMS, as it is part of the AD.

We partially agree. We are currently reviewing issues surrounding the posting of service information on the DMS as part of an AD Docket. Once we thoroughly examine all aspects of this issue and make a final determination, we will consider if our current practice needs revising.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that this AD will affect 15 engines installed on airplanes of U.S. registry. We also estimate that it will take about 70 work-hours per engine to perform the actions, and that the average labor rate is $80 per work-hour. We do not expect that parts will be required. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $84,000 for the inspection.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES .

This amendment to Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs and/or Weather Takeoff Minimums, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs and/or Weather Takeoff Minimums but refer to their depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP and/or Weather Takeoff Minimums contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs and/or Weather Takeoff Minimums. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided.

Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) amends Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in the appropriate FAA Form 8260, as modified by the the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), which is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Code of Federal Regulations. Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in an FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The temporary regulations (TD 9303) that is the subject of these corrections are under sections 368 and 354 of the Internal Revenue Code.

As published, the temporary regulations (TD 9303) contains errors that may prove to be misleading and are in need of correction.

Accordingly, the temporary regulations (TD 9303) that was the subject of FR Doc. E6-21565, is corrected as follows:

1. On page 75879, column 1, in the preamble, under the caption “SUMMARY:”, line 9, the language “securities of the acquiring corporation is” is corrected to read “securities of the acquiring corporation are.”

2. On page 75880, column 1, in the preamble, under the paragraph heading “Background”, first full paragraph of the column, line 5, the language “its operating assets to Y for $34x dollars,” is corrected to read “its operating assets to Y for $34x,.”

3. On page 75880, column 1, in the preamble, under the paragraph heading “Background”, second full paragraph of the column, line 7, the language “requirements of section 354 and 356, is corrected to read “requirements of sections 354 and 356,.”

4. On page 75881, column 1, in the preamble, under the paragraph heading “Special Analyses”, line 7 from the bottom of the paragraph, the language “published elsewhere in this Federal ” is corrected to read “published elsewhere in this issue of the Federal .”

The BNSF Railway Company has requested a temporary deviation in order to replace the railroad signal circuits of the BNSF Railway Railroad Vertical Lift Span Bridge across Berwick Bay, mile 0.4 (Atchafalaya River, mile 17.5) at Morgan City, St. Mary Parish, Louisiana. Replacement of the signal circuits is necessary to turn the lining of signals across the bridge into a fully automatic operation so that the bridge will be in full compliance with requirements of the Federal Railroad Administration. This temporary deviation will allow the bridge to remain in the closed-to-navigation position from 8 a.m. until 8 p.m. on Wednesday, February 7, 2007. The proposed work was previously scheduled for Wednesday, December 13, 2006, but had to be postponed due to parts being unavailable. The required parts have been received and BNSF is now ready to accomplish the repairs. There may be times, during the closure period, when the draw will not be able to open for emergencies.

The bridge provides 4 feet of vertical clearance in the closed-to-navigation position. Thus, most vessels will not be able to transit through the bridge site when the bridge is closed. Navigation on the waterway consists of tugs with tows, fishing vessels and recreational craft including sailboats and powerboats. Due to prior experience, as well as coordination with waterway users, it has been determined that this closure will not have a significant effect on these vessels.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Atlantic Beach Bridge, across Reynolds Channel at mile 0.4, at Lawrence, New York, has a vertical clearance in the closed position of 25 feet at mean high water and 30 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.5.

The owner of the bridge, Nassau County Bridge Authority, requested a temporary deviation to facilitate scheduled bridge span lock maintenance. The bridge will not be able to open while the bridge maintenance is underway. An advance notice for openings is necessary in order to have the bridge operational for vessel traffic.

Under this temporary deviation the bridge shall open on signal after at least a 1-hour advance notice is given between 7 a.m. and 5:30 p.m. from February 26, 2007 through March 2, 2007.

The contact information for providing the advance notice for bridge openings shall be via marine radio channel 13 or by calling (516) 239-1821.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operating schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the Federal Register , where practicable.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Amtrak railroad bridge, across the Mystic River, mile 0.4, at Mystic, Connecticut, has a vertical clearance in the closed position of 4 feet at mean high water and 8 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.211.

The owner of the bridge, National Railroad Passenger Corporation (Amtrak), requested a temporary deviation to facilitate scheduled bridge pinion shaft maintenance. The bridge will not be able to open while the bridge maintenance is underway.

Under this temporary deviation the Amtrak railroad bridge may remain in the closed position from February 2, 2007 through February 4, 2007.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operating schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the Federal Register , where practicable.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Route 82 Bridge, across the Connecticut River, mile 16.8, at East Haddam, Connecticut, has a vertical clearance in the closed position of 22 feet at mean high water and 25 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.205(c).

The owner of the bridge, Connecticut Department of Transportation, requested a temporary deviation to facilitate scheduled bridge maintenance, drive gear repairs. The bridge will not be able to open while the bridge maintenance is underway.

Under this temporary deviation the Route 82 Bridge may remain in the closed position between 8:30 p.m. and 4:30 a.m., for two nights only, between January 22, 2007 and January 27, 2007. The two closure dates will be selected depending upon favorable weather necessary to perform the required repairs.

In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operating schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the Federal Register , where practicable.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

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 publishing an NPRM is unnecessary because this rule removes a safety zone that is no longer needed.

The rule established a safety zone around the sunken M/V ROY A. JODREY, St. Lawrence River, Wellesley Island, NY (67 FR 65042 (October 23, 2002).). The safety zone was necessary for restricting recreational diving while conducting oil removal operations aboard the sunken vessel. The zone covered all waters and adjacent shoreline encompassed by the arc of a circle with a 150-yard radius of the wreck M/V ROY A JODREY, with its center in 44°19.55 N, 075°56.00 W (NAD83). The safety zone is no longer needed and the Coast Guard is removing the regulation.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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 this rule under that order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS), because we are disestablishing the safety zone around wreck M/V ROY A JODREY.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant 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 would not have a significant economic impact on a substantial number of small entities because this rule removes an obsolete safety zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Sector Buffalo (see ADDRESSES ).

Small businesses may send comments on 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).

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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.

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 would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule would 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.

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.

The Coast Guard has 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 concern an environmental risk to health or risk to safety that may disproportionately affect children.

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.

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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

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 procedure; and related management system 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.

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.

Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule because we are disestablishing a safety zone.

Elsewhere in this Federal Register , we are proposing approval and soliciting written comment on this action. Throughout this document, the words “we,” “us,” or “our” mean U.S. EPA.

On June 26, 2002, the Arizona Department of Environmental Quality (``ADEQ'' or ``State'') submitted to EPA Region IX its Miami Sulfur Dioxide State Implementation and Maintenance Plan and its request for redesignation to attainment (``Miami SO 2 Maintenance Plan” or ``submittal”). The submittal summarizes the progress the State has made in attaining the sulfur dioxide (SO 2 ) national ambient air quality standards (NAAQS) in the Miami nonattainment area (Gila County, Arizona) (“Miami area”) and includes a plan to assure continued attainment of the SO 2 NAAQS for at least the next 10 years. The June 26, 2002 submittal also includes a request for redesignation of the boundary of the area and for redesignation of the status of the area, as amended, to “attainment” under section 107(d) of the Clean Air Act (“Act” or CAA). On June 30, 2004, ADEQ submitted certain replacement pages correcting errors in the June 26, 2002 submittal. On June 20, 2006, ADEQ submitted a letter withdrawing the boundary redesignation request and requesting EPA to address the boundary issue as an error correction under CAA section 110(k)(6) instead.

In today's direct final action, because we find that the Miami SO 2 Maintenance Plan meets the requirements for maintenance plans under section 175A of the Act and that the Miami area qualifies for redesignation under CAA section 107(d)(3)(E), we are approving the submittal (as amended by the submittals dated June 30, 2004 and June 20, 2006) as a revision to the Arizona SIP and redesignating the Miami area from nonattainment to attainment for the SO 2 NAAQS. Also, based on a review of the relevant State and EPA materials from the late 1970's, we are correcting errors under CAA section 110(k)(6) in the listing of the townships that comprise the Miami SO 2 nonattainment area to exclude a noncontiguous township and to fix a transcription error in one of the other townships so listed.

The following section discusses the NAAQS for SO 2 , CAA requirements for state implementation plans, SO 2 planning in Arizona generally and in the Miami area more specifically, and sources of emissions in the Miami area.

The NAAQS for SO 2 consists of three standards: Two primary standards for the protection of public health and a secondary standard for protection of public welfare. The primary SO 2 standards address 24-hour average and annual average ambient SO 2 concentrations. The secondary standard addresses 3-hour average ambient SO 2 concentrations. The level of the annual SO 2 standard is 0.030 parts per million (ppm), which is equivalent to 80 micrograms per cubic meter (μg/m 3 ), not to be exceeded in a calendar year. The level of the 24-hour standard is 0.14 ppm (365 μg/m 3 ), not to be exceeded more than once per calendar year. The level of the secondary SO 2 standard is a 3-hour standard of 0.5 ppm (1,300 μg/m 3 ), not to be exceeded more than once per calendar year. See 40 CFR 50.2-50.5.

The CAA requires states to implement, maintain, and enforce ambient air quality equal to or better than the NAAQS. A state's strategies for implementing, maintaining, and enforcing the NAAQS are submitted to EPA for approval, and, once approved, become part of the State Implementation Plan (or SIP) for that State. SIPs are compilations of regulatory and non-regulatory elements adopted, submitted, and approved at different times to address various types of changes in circumstances, such as new or revised NAAQS or amendments to the CAA. SIPs include, among other things, the following: (1) An inventory of emission sources; (2) statutes and regulations adopted by the state legislature and executive agencies; (3) air quality analyses that include demonstrations that adequate controls are in place to meet the NAAQS; and (4) contingency measures to be undertaken if an area fails to attain the standard or make reasonable progress toward attainment by the required date. The state must make proposed changes to the SIP available for public review and comment through a public hearing, and must formally adopt the changes before submitting them to EPA for approval. Upon our approval, a SIP revision becomes federally enforceable.

In the early 1970's, soon after the Clean Air Amendments of 1970 were passed, Arizona began developing air quality regulations that applied to all Arizona primary copper smelters, including the one operating in the Miami area. These regulations focused on establishing an air quality monitoring network in the areas surrounding the smelters and determining the allowable emission rates from the smelters so that the SO 2 NAAQS could be attained and maintained. Arizona submitted various SIP revisions during the 1970s to establish approvable emission limitations for the primary copper smelters operating in the state. On September 20, 1979, the State submitted its SIP revision to EPA which contained its multi-point rollback (MPR) technique to establish operating limitations on smelters. After EPA's proposed conditional approval on November 30, 1981 (46 FR 58098), Arizona made necessary changes which corrected identified deficiencies. EPA granted full approval of the MPR-based SIP submittal on January 14, 1983 (48 FR 1717), but was not able to grant full approval to the SO 2 SIPs for six smelter areas (including Miami) because they lacked a strategy for addressing fugitive 1 sources of SO 2 .

On November 1, 2004, EPA approved several revisions to the SO 2 SIP, including site-specific requirements, compliance and monitoring, and fugitive emissions standards for existing primary copper smelters. See 69 FR 63321. In that same notice, EPA promulgated a limited approval/limited disapproval of R18-2-Appendix 8, which sets out procedures for calculating sulfur emissions using a sulfur balance method. ADEQ subsequently corrected the identified deficiencies and EPA approved the new version of R18-2-Appendix 8 as a SIP revision on April 12, 2006. See 71 FR 18624. The effective date for our April 12, 2006 final approval is June 12, 2006.

Originally, the air quality planning area we refer to as the Miami SO 2 nonattainment area was not separately defined but rather was included in a county-wide SO 2 nonattainment area (see 43 FR 8969, March 3, 1978). At the request of the state of Arizona, the boundaries were reduced to nine townships in and around the city of Miami (44 FR 21261, April 10, 1979). See also, 40 CFR 81.303. 2 In addition, six adjacent townships were designated as “cannot be classified”. Section 107(d)(1)(C) of the 1990 Clean Air Act Amendments (CAAA) brought forward, by operation of law, the nonattainment designations for areas, such as the Miami SO 2 area, that continued to be designated as nonattainment at the time of enactment of the CAAA, i.e., areas that had not been redesignated to “attainment” prior to November 1990.

The dominant source of SO 2 emissions in the Miami area is the Phelps-Dodge Miami primary copper smelter (“Miami smelter”). Combined stack and fugitive SO 2 emissions from the smelter are limited under the source-specific EPA-approved rule (i.e., R18-2-7-715) to 2,420 pounds per hour annual average, which amounts to approximately 10,368 tons per year based on 357 days of operation (set forth for the permit for this facility) or approximately 10,600 tons per year assuming 365 days per year of smelter operation. Between 1996 and 2000, the smelter's actual SO 2 emissions ranged from 5,737 tons per year to 7,819 tons per year and represented 97 to 99% of the total stationary source SO 2 emissions in the Miami nonattainment area. See tables 4.1, 4.3, and 5.2 of the Miami SO 2 Maintenance Plan. There are several other point sources of SO 2 in the Miami area, all of which are relatively minor: BHP Copper, Pinto Valley; BHP Copper, Miami East Unit; Carlota Copper Company Mine; and the Phelps-Dodge Miami Mine. Viewed collectively, these sources are permitted to emit a total of approximately 100 tons per year. Actual emissions, however, are generally less than 10 tons per year. SO 2 emissions from area and mobile sources are about 150 tons per year. See sections 4.1 and 4.3 of the Miami SO 2 Maintenance Plan and table 1, below.

As stated in the summary section of this rule, Arizona has requested that we redesignate the Miami SO 2 nonattainment area to attainment. Any redesignation from nonattainment to attainment requires EPA to determine whether the requirements of Clean Air Act section 107(d)(3)(E), have been met. These criteria are: (1) At the time of the redesignation, we must find that the area has attained the relevant NAAQS; (2) the State must have a fully approved SIP for the area; (3) we must determine that the improvements in air quality are due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable federal regulations and other permanent and enforceable reductions; (4) the state must have met all the nonattainment area requirements applicable to the area; and (5) we must have fully approved a maintenance plan for the area under CAA section 175A.

To evaluate the State's redesignation request for the Miami area, we relied upon the Clean Air Act itself, particularly section 110 and part D (of title I), EPA's NAAQS and SIP regulations in 40 CFR parts 50 and 51, and guidance set forth in “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992), and in the following EPA guidance documents: “Procedures for Processing Requests to Redesignate Areas to Attainment,” dated September 4, 1992, from John Calcagni, (“Calcagni Memo”), “Attainment Determination Policy for Sulfur Dioxide Nonattainment Areas,” dated January 26, 1995, from Sally L. Shaver, (“Shaver Memo”), and “Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” dated October 14, 1994, from Mary D. Nichols (“Nichols Memo”).

Under CAA section 107(d)(3)(E)(i), in order for an area to be redesignated, we must determine that the area has attained the applicable NAAQS. The air quality data should be representative of the area of highest concentration and should be measured by monitors that remain at the same location for the duration of the monitoring period required for demonstrating attainment. The data should be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA's Air Quality System database (AQS) to be available for public review. Under 40 CFR part 58, States certify data that is entered into AQS on an annual basis.

For the purposes of determining whether an area has attained the SO 2 NAAQS, we require no fewer than two consecutive years of “clean” data (i.e., no violations) as recorded in AQS. In addition, to qualify for attainment determination purposes, the annual average and second-highest 24-hour average concentrations must be based upon hourly data that are at least 75 percent complete in each calendar quarter. See 40 CFR 50.4.

The State of Arizona initiated ambient monitoring of SO 2 in the Miami area in 1970. In order to establish coverage sufficient to evaluate the ambient impact of smelter emissions, this initial effort was expanded. Eventually more than sixteen stationary monitoring sites were established, with as many as seven monitors operating concurrently. Historic ambient SO 2 monitoring site locations and periods of operation are provided in Table 3.1, and Figures 3.1 and 3.2 of the State's submittal.

Following the Miami smelter's compliance with stack emissions limits (using continuous control technology) as required under Arizona Administrative Code (AAC) R9-3-515, which was submitted and approved by EPA as a revision to the Arizona SIP in the 1980's (but since amended and re-codified as R18-2-7-715), the number of SO 2 monitors has decreased. Between 1990 and 1996, the number of monitors varied from three to four and several monitoring locations changed, but since 1997, the three presently-operating monitors have remained at their current locations: the Jones Ranch monitor along Cherry Flats Road, the Ridgeline monitor along Linden Street, and the Townsite monitor along Sullivan Street.

All three presently-operating monitors are located south of the smelter, but vary in distance and elevation relative to smelter sources. The Townsite monitor lies closest to the smelter and at the lowest elevation among the three sites while the Jones Ranch monitor lies furthest from the smelter but at the highest elevation. The Jones Ranch and Townsite monitors are operated by Phelps Dodge using Thermal Electron pulsed fluorescent (TECO) samplers, and the Ridgeline monitor is operated by ADEQ using a Thermo pulse fluorescence analyzer.

Table 2 below summarizes the SO 2 monitoring data collected at the various monitors operated by ADEQ (or, in the case of Jones Ranch, ADEQ or the smelter operator) from 1988 through 2005. ADEQ ended its monitoring at Jones Ranch in 1994, but the smelter operator continues to monitor SO 2 at that location. Table 3 below presents estimated annual SO 2 emissions from the smelter over the same time period.

Review of historic data supports identification of the Jones Ranch monitor as the monitoring location where the highest concentrations are recorded among the network of monitoring locations selected to measure the impact of smelter-related emissions on ambient air quality. We note that the Jones Ranch monitoring site was determined to be the “limiting site” for the purposes of establishing emissions limits for the smelter. ADEQ closed its monitoring site at Jones Ranch in 1994, and while Phelps-Dodge continues to operate an SO 2 monitor at that site, the data is not recorded in AQS. 3 In 1995, ADEQ began monitoring at the Ridgeline site, and no exceedances have ever been recorded there.

Based on a review of the data from the Miami SO 2 Maintenance Plan as well as tables 2 and 3 presented above, we find that the Miami nonattainment area has attained the SO 2 NAAQS and thereby meets the first criterion for redesignation. Our conclusion is based on six basic interrelated facts:

• Ambient SO 2 concentrations in the Miami air quality planning area are determined by emissions from the Phelps-Dodge primary copper smelter  4 and local meteorological and topographic characteristics, and all other SO 2 sources have essentially no effect on ambient levels in the planning area;

• The monitor at the Jones Ranch site records SO 2 concentrations that are representative of the highest ambient levels in the nonattainment area;

• There are two consecutive and complete years of “clean” data from the Jones Ranch monitor, i.e., the limiting site, as recorded in AQS (1988 and 1989);

• During the 1988-1989 period, maximum concentrations were approximately 60% of the 3-hour-average secondary NAAQS and approximately 50% of the 24-hour-average primary NAAQS, and the highest of the annual-average concentrations measured in the area during this period was approximately 30% of the corresponding primary NAAQS;

• While annual emissions from the smelter have varied from year to year, they have generally been no higher than 50% above those that occurred during the 1988-1989 period; and

• No SO 2 exceedances have been measured at any of the monitoring sites over the 1988 to 2005 period.

Under CAA section 107(d)(3)(E)(ii), the SIP for the Miami area must be fully approved under CAA section 110(k) of the Act. We examined the applicable SIP for Arizona and also looked at the disapprovals listed in 40 CFR 52.125 and have determined that no disapprovals listed remain relevant to the applicable SIP. Arizona has a fully approved SIP with respect to SO 2 in the Miami area.

CAA section 107(d)(3)(E)(iii) requires that EPA determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and/or applicable federal measures. Figure 6.1 of the Miami SO 2 Maintenance Plan (as amended in ADEQ's submittal dated June 30, 2004) illustrates the significant decline in emissions from the Miami smelter since the 1970's in inverse proportion to the level of control over smelter emissions sources.

Control over the smelter's SO 2 emissions has been made permanent and enforceable through EPA approval of State rules limiting such emissions as a revision to the Arizona SIP (specifically, R18-2-715, R18-2-715.01, R18-2-715.02, and R18-2-Appendix 8) and through ADEQ's issuance of a title V permit for the Miami smelter. Arizona's primary copper smelter rules and ADEQ's title V permit contain enforceable emission limitations that cap emissions at a level that has been shown to be protective of the NAAQS. Any relaxation to the SIP-approved limits must be approved by EPA as a revision to the Arizona SIP, and EPA may not approve any such SIP revision without a demonstration that the relaxation in the limits would not interfere with attainment or maintenance of the NAAQS. See CAA section 110(l). Therefore, we find that the improvement in ambient SO 2 concentrations in the Miami, AZ area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP.

Under CAA section 107(d)(3)(E)(v), we must determine whether the State of Arizona has met all requirements under section 110 and under part D (of title I) of the CAA applicable to the Miami SO 2 nonattainment area.

CAA section 110 contains the general requirements for SIPs (enforceable emissions limits, ambient monitoring, permitting of new sources, adequate funding, etc.). EPA's guidance for implementing section 110 of the Act is discussed in the General Preamble to Title I (57 FR 13498, April 16, 1992). Over the years, we have approved Arizona's SIP as meeting these basic requirements. The SIP includes enforceable emission limitations; requires monitoring, compiling, and analyzing of ambient air quality data; requires preconstruction review of new major stationary sources and major modifications to existing ones; provides for adequate funding, staff, and associated resources necessary to implement its requirements; and requires stationary source emission monitoring and reporting.

Before an area can be redesignated to attainment, it must have fulfilled the applicable requirements under part D (of title I). For this area, the relevant requirements are found in subparts 1 and 5 of part D. Subpart 1 of part D specifies the basic requirements applicable to all nonattainment areas. Subpart 5 sets out additional provisions for areas designated nonattainment for SO 2 . As discussed below, EPA finds that Arizona has met the requirements of subpart 1 of part D, specifically sections 172(c) and 176, and subpart 5 as applicable for the Miami SO 2 nonattainment area.

CAA section 172 contains the general requirements for nonattainment SIPs. A thorough discussion of the requirements of 172(c) can be found in the General Preamble for the implementation of title I (57 FR 13498, April 16, 1992). Additional guidance can be found in the Calcagni memo.

EPA has interpreted the requirements of CAA sections 172(c)(2) (reasonable further progress—RFP), 172(c)(6) (other measures), and 172(c)(9) (contingency measures) as not relevant to a redesignation request because they only have meaning for an area that is not attaining the standard (see the General Preamble and the Calcagni Memo), and as discussed above in section IV.A. of this notice, we find that the Miami area is attaining the SO 2 standard. Furthermore, the State has not sought to exercise options that would trigger section 172(c)(4) (identification of certain emissions increases). Thus, this provision is also not relevant to this redesignation request. The other provisions under 172(c) are discussed below.

Reasonably available control measures. Under CAA section 172(c)(1), reasonably available control measures (RACM), which include requirements for reasonably available control technology (RACT), are required for existing sources in nonattainment areas. In 1983, we approved the State's submittal of Rule R9-3-315, a predecessor to the State's current smelter rules codified at Arizona Administrative Code (AAC) R18-2-715. See 48 FR 1717 (January 14, 1983). This rule limited stack emissions from primary copper smelters, including the smelter in the Miami area. We concluded, however, that the control strategy for SO 2 in Arizona's six SO 2 nonattainment areas was incomplete due to the failure to address fugitive emissions problems. See 48 FR 1717 (January 14, 1983) and 40 CFR 52.125(a)(1).

In 1998, 2003, and 2006, the State submitted amended rules (AAC R18-2-715 (sections F, G, and H), R18-2-715.01, R18-2-715.02, and R18-2-Appendix 8). 5 These rules address both fugitive and stack emissions from smelters and, in approving the rules, we found that the amended rules met the RACT requirement under CAA sections 172(c)(1) and 191(b). See 69 FR 26789 at 26788 (May 14, 2004), 69 FR 63321 (November 2, 2004), and 71 FR 18624 at 18625 (April 12, 2006). Furthermore, because the area has attained the standard, no further demonstration that RACM has been implemented need be submitted by the State.

Emissions inventory. The emissions inventory requirement of section 172(c)(3) is satisfied by the maintenance plan inventory requirements. The maintenance plan inventory is evaluated below, in section IV.E.1.

NSR permit program. Section 172(c)(5) requires new source review (NSR) permits for the construction and operation of new and modified major stationary sources located in nonattainment areas. ADEQ is the agency responsible for implementing the nonattainment area NSR permit program in the Miami area. Under ADEQ's rules, all new major sources and modifications to existing major sources are subject to the NSR requirements of these rules.

We have not yet fully approved the ADEQ NSR rules. 6 We have, however, determined that an area being redesignated from nonattainment to attainment does not need to have an approved NSR program prior to redesignation, provided that the area demonstrates maintenance of the standard without nonattainment NSR in effect. See memorandum from Mary Nichols dated October 14, 1994 (“Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment.”) We have determined that the maintenance demonstration for Miami does not rely on nonattainment NSR.

Prevention of significant deterioration (PSD) is the permitting program that applies in attainment areas. PSD was established to preserve air quality in areas that are meeting the NAAQS. The PSD program requires new, modified, or reconstructed stationary sources to undergo preconstruction review and to apply best available control technology. In addition, sources are required to review PSD increment consumption and undertake preconstruction modeling. ADEQ has an EPA-approved PSD permitting program (Arizona Air Pollution Rule R9-3-304) for all criteria pollutants except respirable particulate matter (PM 10 ). See 48 FR 19878 (May 3, 1983). The federal PSD program for PM 10 was delegated to the State on March 12, 1999. ADEQ's partially approved, partially delegated PSD program will apply automatically to new major sources or major modifications to existing sources of SO 2 in the Miami area once the area is redesignated to attainment.

Compliance with section 110(a)(2). Under section 172(c)(7), plan provisions submitted to satisfy part D must meet the applicable provisions of section 110(a)(2) of the CAA. As noted in section IV.B. above, the Miami portion of the Arizona SIP meets these requirements.

Equivalent techniques. Under section 172(c)(8), EPA may allow the use of equivalent modeling, emission inventory, and planning procedures, unless EPA determines that the proposed techniques are, in the aggregate, less effective than the methods specified by EPA. The Miami SO 2 Maintenance Plan relies on an equivalent modeling technique referred to as Multipoint Rollback (MPR). MPR was used to derive emissions limits for the Miami smelter that provide for attainment and maintenance of the SO 2 NAAQS. The State's rules containing MPR-derived emission limits for the Miami smelter were approved by EPA on January 14, 1983 (48 FR 1717) and amended versions of the rules were approved by EPA on November 1, 2004 (69 FR 63321).

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded or approved under title 23 U.S.C. or the Federal Transit Laws (“transportation conformity”) as well as to all other federally supported or funded projects (“general conformity”). Because EPA does not consider SO 2 a transportation-related pollutant, only the requirements related to general conformity apply to the Miami SO 2 area. The State of Arizona adopted general conformity criteria and procedures as a revision to the Arizona SIP. EPA approved Arizona's general conformity SIP on April 23, 1999 (64 FR 19916). Thus, the requirements of CAA section 176 have been satisfied.

Subpart 5 of part D contains additional provisions for areas designated nonattainment for SO 2 . Under CAA section 191(b), States with existing nonattainment areas for the primary SO 2 NAAQS where those areas lack fully approved SIPs, including part D plans, must submit implementation plans meeting the requirements of subpart 1 of part D. As discussed in section IV.D.2.a of this notice, the State of Arizona has met the requirements of subpart 1 of part D for the Miami area. Under CAA section 192(b), such areas were required to meet the primary SO 2 NAAQS as expeditiously as possibly but no later than November 15, 1995. As discussed in section IV.A of this notice, the Miami SO 2 nonattainment area met the primary SO 2 standards well before the applicable attainment date of November 15, 1995 and has continued to attain since then.

Section 107(d)(3)(E)(iv) of the Act makes EPA approval of a maintenance plan meeting the requirements of section 175A another prerequisite to redesignation. Under section 175A, a maintenance plan must provide for maintenance of the NAAQS for at least 10 years after redesignation, and include any additional control measures as may be necessary to ensure such maintenance. In addition, maintenance plans are to contain such contingency provisions as EPA deems necessary to assure the prompt correction of a violation of the NAAQS that occurs after redesignation. The contingency measures must include, at a minimum, a requirement that the state will implement all control measures contained in the nonattainment SIP prior to redesignation.

The Calcagni Memo contains EPA guidance on the contents of maintenance plans submitted for the purposes of meeting section 175A. Generally, such plans should address the following five topics: the attainment emissions inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan.

Lastly, under CAA section 175A(b), states are required to submit a subsequent maintenance plan eight years after redesignation providing for maintenance of the NAAQS for an additional 10-year period beyond the initial 10-year maintenance period.

The Miami SO 2 Maintenance Plan includes an emissions inventory for point sources, area sources, and mobile sources for 1999 and 2000 as well as a projection of emissions to 2015. See table 4 below. As discussed in section IV.A of this notice, the Miami area has continued to attain the SO 2 NAAQS since at least 1990 and thus 1999 and 2000 are acceptable as the basis upon which to develop an “attainment emissions inventory” for the purposes of a maintenance plan.

ADEQ developed the area and mobile source estimates shown in table 4 based on EPA's AIRData for Gila County. Point source estimates are based on ADEQ annual emissions inventory data. See section 4.0 and appendix B of the Miami SO 2 Maintenance Plan. Sulfur dioxide emissions from the Phelps-Dodge smelter copper smelter itself are based on continuous emission monitoring systems and the assumption that stack emissions represent 25 percent of the facility's total annual (i.e., stack plus fugitive) SO 2 emissions. The actual percentage of total facility emissions emanating from the stacks varies from year to year (e.g., from 19 percent to 33 percent over the 1996 to 2000 period) but the 25 percent assumption is a reasonable average annual value based on material balance calculation methods.

Based on our review of the submitted plan, we conclude that the emissions inventory is based on reasonable methods and assumptions and is comprehensive and accurate.

EPA allows states to demonstrate maintenance of the NAAQS by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS. 7 In the case of the Miami nonattainment area, the demonstration of maintenance relies on both a projected emissions inventory for future years of 2005, 2010, and 2015 for sources in the Miami nonattainment area as well as SO 2 emission limits for the Miami smelter that were developed using a variant of Multipoint Rollback (MPR) modeling and intended to minimize the probability of an exceedance of the SO 2 NAAQS due to smelter emissions.

The inventory from the Miami SO 2 Maintenance Plan shows that about 98% of the total SO 2 emissions in the Miami nonattainment area are generated by the smelter. 8 Projections for the Miami smelter itself anticipate a minor increase from those in 1999 [7,819 tons per year (tpy)] to 2005 and beyond (8,000 tpy). The remaining point sources in the nonattainment area have existing permits that limit their allowable emissions to less than 100 tpy. Projections for area and mobile sources (increasing from 149 tpy  9 to 162 tpy) are based on anticipated moderate increases in population and the assumption that SO 2 emissions from such sources are proportionate to the population. Total projected actual emissions of point, area, and mobile sources are expected to remain relatively constant, with total SO 2 emissions projected to be less than 24 tons on a daily basis and approximately 8,200 tons on annual basis by 2015. 10 This represents an increase of only about 2 percent from 1999 levels. Thus, throughout the maintenance period, the Miami smelter is expected to continue to be the overwhelming source of SO 2 emissions in the area.

The emissions projections for the smelter (from 7,819 tpy) in 1999 to 8,000 tpy in 2005 and beyond are based on the expectation that, through 2015, the copper industry will not expand. While the expectation of continued low price pressures on copper may well have been reasonable in 2002 when the maintenance plan was adopted, changes in the copper market in fact have occurred over the past several years raising the price for copper thereby leading to a reasonable expectation of higher production levels at the Miami smelter than anticipated in the Miami SO 2 Maintenance Plan.

Nonetheless, the demonstration of maintenance of the SO 2 NAAQS in the Miami area does not rely solely on the emissions projections, but also on the SO 2 emission limits established under SIP rule AAC R18-2-715 (approved by EPA in 2004 and, as amended, in 2006) and incorporated into the title V operating permit for the Phelps-Dodge Miami smelter. These limits cap stack emissions at 604 pounds per hour (lbs/hr) on an annual average basis and total facility (i.e., stacks plus fugitives) emissions at 2,420 lbs/hr on an annual basis. SIP rule AAC R18-2-715 also establishes a cumulative occurrence table that caps the number of occurrences of 3-hour average emissions above various levels with, for example, only two occurrences allowed per year of stack SO 2 emissions greater than 5,900 lbs/hr, 3-hour average. The total facility emissions cap (2,420 lbs/hr) corresponds to approximately 10,600 tpy assuming round-the-clock, year-round operation (the permit however cites 10,400 tpy based on 357 work days in a given year).

As explained below, ADEQ has demonstrated that the new limits are protective of the SO 2 NAAQS. In order to increase the smelter's emissions limits the State would have to submit a SIP revision that demonstrates that, consistent with CAA section 110(l), the revision does not interfere with maintenance of the SO 2 NAAQS. Therefore, the emission limits for the smelter, supported by the emissions inventory projections that show that the smelter will remain the overwhelming source of SO 2 emissions in the area for the foreseeable future, in essence provide the demonstration necessary to show that the Miami area will continue to attain the SO 2 standard indefinitely, and thereby comply with CAA section 175A(a), which requires maintenance plans to provide for maintenance of the NAAQS for at least 10 years after redesignation.

Given the link then between the SO 2 emission limits on the Phelps-Dodge Miami smelter and the demonstration of maintenance, the Miami SO 2 Maintenance Plan provides a detailed explanation of how the limits were derived and how they minimize the probability of exceedance of the SO 2 NAAQS due to smelter operations. See chapter 5 of the submitted plan. First, it is important to note that ADEQ used a variant of the Multipoint Rollback (MPR) method to derive these emissions limits. In brief, MPR uses the ratio of monitored concentrations to the NAAQS to determine how much to scale the smelter's existing hourly distribution of emission rates so that they meet the NAAQS. Unlike simple rollback, which yields a single maximum emission rate never to be exceeded, MPR yields limitations on the number of times per year that the facility may exceed each of a series of emission rates. In the resulting cumulative occurrence table, the larger the emissions rate, the fewer number of occurrences are allowed per year. The emission rates are chosen so that the full hourly distribution results in attainment of the NAAQS on a probabilistic basis. This approach has been approved by EPA for use with smelters because of their highly variable emission rates. 11 ADEQ used a variant of MPR, as explained further below, to show that the new limits are protective of the NAAQS.

ADEQ derived the original emissions limits for the smelter in the late 1970's using MPR, and adopted the original smelter SO2 emissions rule in 1979. To derive new, enforceable limits on the smelter stacks, it was necessary to distinguish stack emissions from total emissions, which include fugitives (those emissions not vented through the stack). The new emissions limits were derived by apportioning the old facility-wide emission limits between the stack emissions and fugitive emissions. Using mass balance, the total amount of emissions can be calculated from the total mass of sulfur entering the plant in raw materials. Stack emissions are monitored, and account for about 25% of the total sulfur. The fugitive emissions were then determined by subtracting the monitored stack emissions from the calculated total emissions. Because the release height of the stack and fugitive emissions is similar, and their emissions are fairly well-mixed by the time they reach the monitor, the stack also accounts for 25% of the observed concentration at the monitor, on average. Thus, 25% of the existing facility-wide limits (2,420 lb/hr) are what the stack must be limited to (605 lb/hr; the SIP rule caps the emissions at 604 lb/hr, which is slightly more conservative) in order to meet the NAAQS.

This provides only an annual average emission rate. To derive MPR-style limits on allowed occurrences of various emission rates (i.e., a cumulative occurrence table), ADEQ used the shape of the current hourly emission distribution  12 and scaled it to match the required annual average emission rate. Since the new average limit is 1.75 times the current average actual emissions (604 lb/hr limit vs. 345 lb/hr current average), the current distribution and occurrence emission levels were scaled up by this factor. The result is new occurrence limits consistent with the new average limit of 604 lb/hr, the level needed to meet the NAAQS based upon the 1979 MPR analysis and the 25% stack fraction.

However, scaling according to the 1979 limits assumes that the 1979 relationship between emissions and ambient concentrations has not changed. There have been substantial operational and emissions changes at the smelter since the 1979 average emission limit and occurrence table were derived, which could have altered the shape of the emissions curve. If the current distribution shape has a broader peak than the 1979 one, then there will be relatively more instances of high ambient impacts, and so scaling of the average will not guarantee NAAQS-protective limits on short-term emissions.

In order to address this, ADEQ carried out a second step in the submittal that is more consistent with the MPR procedure, in that it incorporated the ambient effect of the current emissions distribution, rather than relying on the 1979 relationship. ADEQ used monitoring data from 1996-2000, and emissions during that same period. The new emission limits, though a decrease from the old limits, represent an increase over the current actual emissions, and so should be shown to be consistent with the NAAQS. ADEQ assumed the smelter operated at the higher emissions rate allowed in the new limits, and applied the fractional emissions increase to ambient 3-hour, 24-hour, and annual SO 2 concentrations. This uses the current relationship between emissions and ambient concentration to show that the scaled-up emissions allowed in the new limits are consistent with the NAAQS. The result of this “rollback” scaling is shown in figure 5.4 of the Miami SO 2 Maintenance Plan, and also in table 5 below.

With this second verification step, ADEQ used a procedure consistent with MPR, an EPA-approved method for smelter attainment demonstrations, to show that the new limits are protective of the NAAQS. We find that the protection of the NAAQS provided by the smelter's SO 2 emissions limits, considered in the context of emissions projections that show that the smelter will remain the overwhelming source of SO 2 emissions in the area for the foreseeable future, sufficient to demonstrate maintenance through the maintenance period and beyond.

Currently, there are three monitoring sites in the Miami nonattainment area: the Ridgeline monitor operated by ADEQ, and the Jones Ranch and Townsite monitors operated by Phelps-Dodge. ADEQ and Phelps-Dodge Miami commit to continue monitoring ambient SO 2 concentrations at their respective sites for at least 10 years following the approval of the Miami SO 2 Maintenance Plan. Phelps-Dodge has the option of shutting down the monitors if the smelter has not operated for more than 2 years but commits to resume monitoring at the two sites three months prior to restarting of smelting operations. In addition, ADEQ commits to discussing changes to monitor locations with EPA and indicates that all ambient monitoring data will continue to be quality-assured in accordance with the requirements of 40 CFR part 58, Ambient Air Quality Surveillance. See section 7.2 of the submitted plan. We find that the Miami SO 2 Maintenance Plan adequately provides for continued monitoring of SO 2 concentrations in the Miami area.

At the present time, only the SO 2 monitoring data collected at ADEQ's Ridgeline site is certified and entered into AQS. However, because the Jones Ranch site has historically measured the highest SO 2 concentrations in the area and because the data from Jones Ranch is used in connection with the contingency plan, EPA has requested that ADEQ commit to working with Phelps-Dodge to ensure that SO 2 monitoring data from the Jones Ranch site is entered into AQS. By letter to EPA dated October 18, 2006, ADEQ has agreed that entering SO 2 monitoring data from the Jones Ranch site into AQS is appropriate and has committed to working with Phelps-Dodge to accomplish this task no later than the first quarter of 2008. This commitment provides additional assurance that a suitable monitoring network will be maintained within the Miami area through the maintenance period and provides additional support for the contingency plan discussed below in section IV.E.5 of this action.

ADEQ intends to track the progress of the Miami SO 2 Maintenance Plan through implementation and enforcement of the monitoring, reporting, and certification procedures to which permitted sources are subject under AAC R18-2-306 and R18-2-309. As a permitted source, the Phelps-Dodge Miami smelter is subject to these State requirements. ADEQ also notes that it has authority pursuant to Arizona Revised Statutes section 49-101 to monitor and ensure source compliance with all applicable rules and permit conditions. See section 7.3 of the submitted plan. Lastly, we note that ADEQ is required under 40 CFR part 51, subpart A, to report emissions data for large stationary sources, such as the Phelps-Dodge Miami smelter, on an annual basis. Considered together, the submitted plan and relevant EPA regulations adequately provide for verification of continued attainment of the SO 2 NAAQS in the Miami area.

Section 175A(d) of the CAA requires that maintenance plans include contingency provisions to promptly correct any violation of the NAAQS that occurs after redesignation of the area. The Calcagni memo provides additional guidance, noting that, although a state is not required to have fully adopted contingency measures that will take effect without further action by the state in order for the maintenance plan to be approved, the maintenance plan should ensure that the contingency measures are adopted expediently once they are triggered. Specifically, the maintenance plan should clearly identify the measures to be adopted, include a schedule and procedure for adoption and implementation of the measures, and contain a specific time limit for action by the state. In addition, the state should identify specific indicators, or triggers, that will be used to determine when the contingency measures need to be implemented.

Because the Phelps-Dodge smelter is the overwhelming source of SO 2 emissions in the Miami area, the contingency plan contained in section 7.4 of the Miami SO 2 Maintenance Plan focuses on ambient impacts and emissions attributable to it. The contingency plan uses monitored ambient concentrations of SO 2 to trigger actions designed to ensure continued attainment of the SO 2 NAAQS. The trigger levels and associated notification procedures and associated actions are described below.

Notification Procedure: If either of the Phelps-Dodge monitors or the ADEQ-operated monitor record ambient 3-hour average SO 2 levels between 0.425 ppm and 0.5 ppm (i.e., levels greater than 85%, but less than 100%, of the secondary SO 2 NAAQS),  13 the entity that operates the monitor is required to notify the other party. A second occurrence in a calendar year of ambient concentrations between 0.425 ppm and 0.5 ppm, or an exceedance of the secondary NAAQS is defined as the protective trigger level (PTL). The response required by a triggering of the PTL is divided into two action levels.

First Action Level: If the PTL is tripped, Phelps-Dodge must undertake a series of inspections and a full calibration check of the ambient SO 2 analyzers and recording systems in order to validate the data. If the data are determined to be valid, Phelps-Dodge must perform any needed repairs or corrective actions and implement specified preventive measures. The source must also submit a report to ADEQ by the close of the second business day following an exceedance in which it describes the nature of the event, any corrective actions taken to resolve the event, and recommendations for future corrective actions to avoid recurrence of such an event.

Second Action Level: If the source is unable to correct the triggering of the PTL by implementing the actions required under the first action level, Phelps-Dodge must undertake an analysis to identify additional control measures needed to ensure maintenance of the NAAQS. Phelps-Dodge is required to submit recommendations to ADEQ within 30 business days following the triggering of the PTL. Using all available data, ADEQ will determine the cause and appropriate resolution of the event, and will require the adoption and implementation of additional control measures, as needed. ADEQ commits to initiating changes to the rules or to the permit as soon as possible.

Special Measure: A violation of the secondary NAAQS (i.e., a second exceedance in a calendar year) triggers the implementation of a special measure within 24 hours of the monitored violation that requires the source to reduce its operating rate by the same percentage as that by which the 3-hour standard was exceeded. These circumstances also require that the source comply with first action level requirements and, if necessary, second action level requirements. A second and higher concentration violation of the secondary NAAQS within the same calendar year requires that the operating rate be recalculated accordingly.

Upon review of the contingency plan in the Miami SO2 Maintenance Plan summarized above, we find that ADEQ has established a workable contingency plan, including trigger levels, notification procedures, and appropriate actions, for promptly correcting any violations of the SO2 NAAQS that occur after the redesignation of the Miami area to attainment and thereby satisfies the requirements of CAA section 175A(d).

As noted previously, CAA section 175A(b) requires states to submit a subsequent maintenance plan revision eight years after the redesignation request is approved by EPA. The subsequent maintenance plan is to provide for maintenance of the NAAQS for an additional 10 years following the first 10-year maintenance period. ADEQ has made a commitment to submit a subsequent maintenance plan to EPA eight years into the initial 10-year maintenance period (see page 53 of the submitted plan) and thereby satisfies CAA section 175A(b).

ADEQ's Miami SO 2 Maintenance Plan adequately addresses the five basic topics that such plans should address, including attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and contingency plan, and also provides for submittal of a subsequent maintenance plan. Therefore, we approve the Miami SO 2 Maintenance Plan as a revision to the Arizona SIP and thereby satisfy the related redesignation criterion of CAA section 107(d)(3)(E)(iv).

Under section 107(d) of the Clean Air Act Amendments of 1977, each State was directed to submit to EPA a list identifying the NAAQS attainment status for all areas within the State. EPA was required under section 107(d)(2) of the 1977 Amended Act to promulgate the State lists, with any necessary modifications, within 60 days of their submittal. In 1978, in the absence of recommendations from the State of Arizona, EPA promulgated the original area designations for Arizona for each of the NAAQS. See 43 FR 8962 (March 3, 1978). 14 EPA selected counties as the geographic basis for the original nonattainment area designations for SO 2 in Arizona and designated all of Gila County as a nonattainment area for the SO 2 NAAQS. See 43 FR 8962, at 8968.

On August 15, 1978, the State of Arizona submitted its area designations to EPA with the intent that EPA redesignate the original EPA-promulgated nonattainment areas to reflect the State's recommendations. The State's August 15, 1978 submittal included a background document prepared by the Arizona Department of Health Services and entitled, “Identification of Areas within Arizona that do or do not meet National Ambient Air Quality Standards (August 1, 1978)” (referred to herein as the “State's designations background report”). The State's designations background report identifies townships, or identifiable portions thereof, as the smallest geographic unit defining air quality planning areas in Arizona.

With respect to SO 2 in the Miami area, the State's designations background report includes a map showing a nonattainment area comprised by a total of nine townships: two townships in which the major source of SO 2 emissions in the area (i.e., the primary copper smelter) is located (T1N, R14E and T1N, R15E) and seven adjacent townships (or portions thereof) to the east, west, north and south. The State's map also shows six additional adjacent townships with the designation of “cannot be classified.”

In the State's designations background report, the State provided a specific list of townships defining the nonattainment and “cannot be classified” areas. However, the list of townships and the map illustrating the areas are not entirely consistent with one another. The State's list of townships for the Miami SO 2 nonattainment area includes, among others, the following townships moving west to east: T1N, R13E; T1N, R14E; T1N, R15E; and T1N, R16E. The township immediately east of T1N, R15E, however, is T1N, R15 1/2 E not T1N, R16E, and thus the list inadvertently created a noncontiguous nonattainment area with a single township (T1N, R16E) isolated from the rest of the larger designated area. 15 In contrast, the map submitted as part of the designations background report shows the nonattainment area boundary as a single contiguous area including both T1N, R15 1/2 E and the western half of T1N, R16E. On April 10, 1979 (44 FR 21261), we approved the redesignation request by Arizona for the Miami SO 2 nonattainment area without modification and thereby codified the State's submitted list of townships (not the map) as the geographic definition for the Miami SO 2 nonattainment area thereby creating a noncontiguous nonattainment area (i.e., one township isolated from the rest of the townships comprising the nonattainment area). In its June 26, 2002 submittal of the Miami SO 2 Maintenance Plan and supplemental June 30, 2004 submittal, ADEQ requested that we redesignate the boundaries under CAA section 107(d)(3)(D) to create a single, contiguous planning area and to exclude tribal lands from the planning area. By letter dated June 26, 2006, however, ADEQ withdrew the boundary redesignation request as previously formulated but requested that EPA act to correct the boundary under section 110(k)(6) of the Act instead. As explained further below, we agree with ADEQ that a boundary correction is warranted, and we make the related corrections to the boundary in today's notice.

Also, while our April 10, 1979 final rule redesignating nonattainment areas in Arizona correctly listed T1S, R14 1/2 E as one of the townships comprising the Miami SO 2 nonattainment area, the 1979 version of 40 CFR part 81 included a transcription error and listed this particular township as “T1S, R14 1/4 E” instead of “T1S, R14 1/2 E.” We are correcting the transcription error in this notice as well.

Section 110(k)(6) of the Clean Air Act, as amended in 1990, provides, “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and the public.”

We interpret this provision to authorize the Agency to make corrections to a promulgated regulation when it is shown to our satisfaction that (1) we clearly erred in failing to consider or in inappropriately considering information made available to EPA at the time of the promulgation, or the information made available at the time of promulgation is subsequently demonstrated to have been clearly inadequate, and (2) other information persuasively supports a change in the regulation. See 57 FR 56762, at 56763 (November 30, 1992).

In this instance, we have found clear error in our 1979 consideration of the State of Arizona's submitted recommendations for area redesignations and believe that correction of the error to be appropriate at this time in support of the State's submittal of a redesignation request and maintenance plan for the SO 2 NAAQS within the Miami air quality planning area.

Based on a comparison of the map submitted by the State in its 1978 designations background report that illustrates the nonattainment area with the accompanying list of townships defining the area, we find that the State erred by assuming that the township immediately east of T1N, R15E is T1N, R16E when it is actually T1N, R15 1/2 E and by then including the former instead of the latter in the list of townships defining the nonattainment area. Whereas T1N, R15 1/2 E lies immediately adjacent to one of the townships in which the major source of SO 2 emissions is located, T1N, R16E lies mostly within the San Carlos Indian Reservation, is more distant from the major source in the area, and has no known source of SO 2 emissions. EPA then erred in failing to discover this error in our 1979 consideration and approval of the State's recommended redesignation for the Miami SO 2 nonattainment area. By virtue of the State's designations background report submitted in August 15, 1978, EPA had the relevant information necessary to discover this error at the time of our April 10, 1979 final rule but failed to do so. The State has now requested redesignation of the Miami SO 2 nonattainment area to “attainment” and submitted a maintenance plan, which if approved as proposed herein, will begin the next phase (“maintenance”) of air quality planning in the Miami area.

We believe that correction of the error that resulted in the creation of a noncontiguous area would help provide a solid regulatory foundation for the maintenance phase of CAA planning in the Miami area by eliminating the noncontiguous portion of the otherwise contiguous Miami air quality planning area and by removing any uncertainties as to the area designation status and applicable requirements for township T1N, R16E. Furthermore, ADEQ's redesignation request and maintenance plan for the Miami area do not rely on any control measure within T1N, R16E to demonstrate attainment and maintenance of the SO 2 standard in the Miami area. We are therefore taking direct final action under CAA section 110(k)(6) to correct the designation for T1N, R16E and thereby remove it from the list of townships comprising the Miami SO 2 nonattainment area (which we are herein taking direct final action to redesignate to attainment). Specifically, we are correcting the error by revising the designation of T1N, R16E from “does not meet primary standards” to “cannot be classified” in the listing for Miami in the Arizona SO 2 table in 40 CFR 81.303. We are changing the designation of the township to “cannot be classified” for the SO 2 standard consistent with the State's 1978 approach for areas that, while in the general proximity of a recommended SO 2 nonattainment area, would be unlikely to experience violations of the standard because of the distance from the source and the terrain. For example, using this rationale, the State recommended, and we approved, “cannot be classified” designations for townships T2N, R16E and T1S, R16E.

Rather than reclassifying township T1N, R15 1/2 E as part of this redesignation action, we have decided to retain its current air quality planning status of “cannot be classified.” First, establishing township T1N, R15 1/2 E as part of a future Miami maintenance area (and no longer as part of the “rest of state” area) could have unintended effects on SO 2 increment tracking under the State's prevention of significant deterioration permitting program. Second, no control measures in T1N, R15 1/2 E have been relied upon for attainment or maintenance of the SO 2 standard in the Miami area. Third, including township T1N, R15 1/2 E in the maintenance area would inappropriately subject projects in that township to certain CAA requirements, such as general conformity, that are intended only to apply within nonattainment areas and former nonattainment areas that have been redesignated to attainment. See CAA section 176(c)(5).

In addition to the correction described above, we are taking direct final action to correct the transcription error introduced first in the 1979 version of 40 CFR part 81 by replacing T1S, R14 1/4 E with T1S, R14 1/2 E in the list of townships comprising the Miami SO 2 air quality planning area.

As authorized under section 110(k)(3) of the Act, EPA is approving the Miami Sulfur Dioxide Nonattainment Area State Implementation and Maintenance Plan, as submitted by ADEQ on June 26, 2002, corrected by the submittal dated June 30, 2004, and amended by the submittal dated June 20, 2006, as a revision to the Arizona state implementation plan. In so doing, we find that the maintenance plan meets the requirements for such plans under CAA section 175A.

EPA is also approving the State of Arizona's request for redesignation of the Miami area from nonattainment to attainment for the SO 2 NAAQS based on our conclusion that all of the redesignation criteria in CAA section 107(d)(3)(E) have been satisfied. Specifically, we find that (1) the Miami area has attained the SO 2 NAAQS; (2) Arizona has a fully approved SIP for the Miami area; (3) the improvements in air quality in the Miami area are due to permanent and enforceable reductions in emissions resulting from implementation of EPA-approved smelter rules and title V permit conditions; (4) Arizona has met all of the nonattainment area requirements applicable to the Miami area; and (5) the State's submitted maintenance plan meets all relevant CAA requirements and is being approved in this notice.

Lastly, under CAA section 110(k)(6) and for the reasons stated above in section V of this notice, EPA is correcting the boundary of the Miami SO 2 nonattainment area to exclude a noncontiguous township that was erroneously included in the original description of the nonattainment area. Specifically, we are correcting the error by revising the designation of township T1N, R16E as listed in the Arizona SO 2 table in 40 CFR 81.303 from “does not meet primary standards” to “cannot be classified.” We are also correcting the erroneous transcription of one of the townships in the Miami SO 2 planning area in 40 CFR 81.303 by replacing “T1S, R14 1/4 E” with “T1S, R14 1/2 E.”

EPA is finalizing this action without proposing it in advance because the Agency views this action as noncontroversial and anticipates no adverse comments. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same maintenance plan and request for redesignation and proposing the same corrections to the list of townships comprising the Miami, AZ SO 2 area. If we receive adverse comments by February 23, 2007, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on March 26, 2007. This will approve the redesignation request and maintenance plan submitted by Arizona on June 26, 2002, as amended by submittals dated June 30, 2004 and June 20, 2006, and to revise the designation of township T1N, R16E as listed in the Arizona SO 2 table in 40 CFR 81.303 from “does not meet primary standards” to “cannot be classified” and replace the township incorrectly listed as “T1S, R14 1/4 E” with “T1S, R14 1/2 E”.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves a state plan and redesignation request as meeting Federal requirements and corrects a long-standing error in the boundary of an air quality planning area. It imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, 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 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). Nonetheless, EPA has contacted the San Carlos Apache tribe to provide an opportunity to discuss the implications of exclusion of that portion of township T1N, R16E that lies within the reservation from the Miami SO 2 nonattainment area. In letters dated November 20, 2006 and December 12, 2006, EPA transmitted a fact sheet with background information on this issue and a map illustrating the air quality planning area boundary change.

This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state plan and redesignation request implementing a Federal standard and corrects a long-standing error in the boundary of an air quality planning area. It does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 26, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to accessing an electronic copy of this Federal Register document through the electronic docket at http://www.regulations.gov , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at http://www.gpoaccess.gov/ecfr .

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0667 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before March 26, 2007.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0667, by one of the following methods:

• Federal eRulemaking Portal : http://www.regulations.gov . Follow the on-line instructions for submitting comments.

• Mail : Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is (703) 305-5805.

In the Federal Register of September 13, 2006 (71 FR 54057) (FRL-8091-7), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5E6901) by Interregional Research Project No. 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201, Princeton, NJ 08540. The petition requested that 40 CFR 180.607 be amended by revising a tolerance for combined residues of the insecticide/miticide spiromesifen (2-oxo-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-4-yl 3,3-dimethylbutanoate) and its enol metabolite (4-hydroxy-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-2-one), calculated as the parent compound equivalents, in or on vegetable, fruiting, crop group 8 from 0.30 to 0.45 parts per million (ppm). The same notice also announced the filing of a pesticide petition (PP 6F7039) by Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709. That petition requested that 40 CFR 180.607 be amended by establishing a tolerance for inadvertent or indirect combined residues of the insecticide/miticide spiromesifen (2-oxo-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-4-yl 3,3-dimethylbutanoate), its enol metabolite (4-hydroxy-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-2-one), and its metabolites containing the 4-hydroxymethyl moiety (4-hydroxy-3-[4-(hydroxymethyl)-2,6-dimethylphenyl]-1-oxaspiro[4.4]non-3-en-2-one), calculated as the parent compound equivalents, in or on oat, forage; oat, fodder; and oat, straw at 0.25 ppm and in or on the food commodity oat, grain at 0.03 ppm. The notice included summaries of the petitions prepared by Bayer CropScience, the registrant. Comments were received on the notice of filing from one private citizen. EPA's response to these comments is discussed in Unit IV.C.

Based on the EPA analysis of the residue chemistry and toxicological databases, petition PP 6F7039 was subsequently revised to express the oat tolerances as inadvertent or indirect combined residues of the insecticide/miticide spiromesifen (2-oxo-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-4-yl 3,3-dimethylbutanoate), its enol metabolite (4-hydroxy-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-2-one), and its metabolites containing the 4-hydroxymethyl moiety (4-hydroxy-3-[4-(hydroxymethyl)-2,6-dimethylphenyl]-1-oxaspiro[4.4]non-3-en-2-one), calculated as the parent compound equivalents, in or on oat, forage at 0.20 ppm; oat, grain at 0.03 ppm; oat, hay at 0.25 ppm; and oat, straw at 0.25 ppm.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm and http://www.epa.gov/fedrgstr/EPA-PEST/2003/July/Day-30/p19357.htm .

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a tolerance for combined residues of the insecticide/miticide spiromesifen and its enol metabolite, in or on vegetable, fruiting, crop group 8 at 0.45 ppm and the inadvertent or indirect combined residues of the insecticide/miticide spiromesifen and its enol metabolite, in or on oat, forage at 0.20 ppm; oat, grain at 0.03 ppm; oat, hay at 0.25 ppm; and oat, straw at 0.25 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by spiromesifen as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found in Unit III.A. of the final rule published in the Federal Register of April 27, 2005 (70 FR 21631) (FRL-7705-1) at http://www.epa.gov/fedrgstr/EPAFR-CONTENTS/2005/April/Day-27/contents.htm .

For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify non-threshold hazards such as cancer. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk and estimates risk in terms of the probability of occurrence of additional cancer cases. More information can be found on the general principles EPA uses in risk characterization at http://www.epa.gov/pesticides/health/human.htm .

A summary of the toxicological endpoints for spiromesifen used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of April 27, 2005 (70 FR 21631) (FRL-7705-1) at http://www.epa.gov/fedrgstr/EPAFR-CONTENTS/2005/April/Day-27/contents.htm .

1. Dietary exposure from food and feed uses . Tolerances have been established (40 CFR 180.607) for the combined residues of spiromesifen, in or on a variety of raw agricultural commodities. In addition, tolerances have been established for combined residues on several livestock (cattle, goat, horse, sheep) commodities which feed on these raw agricultural commodities and for inadvertent or indirect combined residues on some rotational crop (alfalfa, barley, sugar beet, wheat) commodities. Risk assessments were conducted by EPA to assess dietary exposures from spiromesifen in food as follows:

i. Acute exposure . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for spiromesifen. Therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID TM ), which incorporates food consumption data as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII), and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: (1) Established/recommended tolerances for all plant and livestock except the leafy-green and leafy-Brassica vegetable subgroups; (2) EPA calculated residues of concern (parent and metabolites) for the leafy-green and leafy-Brassica vegetable subgroup; (3) 100% crop treated (CT) information for all proposed and existing uses; and (4) DEEM TM Version 7.81 default processing factors for all commodities.

The metabolism studies show that the hydroxymethyl metabolite is formed along with the enol metabolite only in the leafy-green and leafy-Brassica vegetable subgroups. EPA determined that these two metabolites along with the spiromesifen should be included in the chronic dietary risk assessment for these crops. Residue data are unavailable for the 4-hydroxymethyl metabolite; to account for this metabolite in the risk assessment, the recommended tolerance levels for these crops was multiplied by a correction factor of 1.3X, where 1.3 = metabolites in risk assessment (ppm) / metabolites in tolerance expression (ppm).

iii. Cancer . A cancer exposure assessment was not performed because spiromesifen is classified as “not likely to be carcinogenic to humans.”

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for spiromesifen in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of spiromesifen. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm .

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentrations in Groundwater (SCI-GROW) models, the estimated environmental concentrations (EECs) of spiromesifen for chronic exposures are estimated to be 11 ppb for surface water and 28 ppb for ground water. Drinking water estimates were incorporated directly into the DEEM-FCID TM using the estimated drinking water concentration generated by the SCI-GROW (version 2.3) model of 28 ppb.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Spiromesifen is not registered for use on any sites that would result in residential exposure.

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency considers “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to spiromesifen and any other substances and spiromesifen does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that spiromesifen has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at http://www.epa.gov/pesticides/cumulative .

1. In general . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a Margin of Exposure (MOE) analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate.

2. Prenatal and postnatal sensitivity . There was no evidence of increased susceptibility of rats or rabbits to in utero prenatal or postpostnatal exposure to spiromesifen. In a rat developmental toxicity study, no developmental toxicity was observed at doses up to 500 milligrams/kilograms/day (mg/kg/day) (the highest dose tested) in the presence of maternal toxicity. The rat maternal LOAEL was determined to be 70 mg/kg/day based on decreased body-weight gain and reduced food consumption. In the rabbit developmental toxicity study, there was no developmental toxicity observed at doses up to 250 mg/kg/day (the highest dose tested), but the maternal LOAEL was determined to be 35 mg/kg/day based on body weight loss and reduced food consumption. There is no qualitative and/or quantitative evidence of increased susceptibility to spiromesifen following pre/postnatal exposure in a 2-generation reproduction study in rats.

There is no concern for developmental neurotoxicity resulting from exposure to spiromesifen. Neurotoxic effects such as reduced motility, spastic gait, increased reactivity, tremors, clonic-tonic convulsions, reduced activity, labored breathing, vocalization, avoidance reaction, piloerection, limp, cyanosis, squatted posture, and salivation were observed in two studies (5-day inhalation and subchronic oral rat). However, these effects were considered as secondary, not neurotoxic, effects due to the high dosage. There was no evidence of neurotoxicity in the acute or subchronic neurotoxicity or any other studies.

3. Conclusion . For spiromesifen, EPA determined that the 10X safety factor to protect infants and children should be removed. A 1X safety factor is appropriate because:

• There is a complete toxicity database for spiromesifen.

• There was no evidence of increased susceptibility of rat or rabbit fetuses to in utero exposure in developmental studies, nor following prenatal or postnatal exposure by rats in the 2-generation reproduction study.

• There are no neurotoxicity concerns based on acute and subchronic neurotoxicity studies.

• The dietary food exposure assessment uses proposed tolerance levels or higher residues for most commodities and assumed 100% crop-treated information for all commodities. By using these screening-level assessments, chronic exposures and risks will not be underestimated. The “higher residues” are those that were calculated using a modifying factor to account for the lack of spiromesifen-4-hydroxymethyl residue data.

• The dietary drinking water assessment (Tier 2 estimates) uses values generated by model and associated modeling parameters which are designed to provide conservative, health protective, and high-end estimates of water concentrations.

• Residential exposure is not expected, spiromesifen will be registered for agricultural and greenhouse/ornamental uses only.

1. Acute risk . As there were no toxic effects attributable to a single dose, an endpoint of concern was not identified to quantitate acute dietary risk to the general population or any subpopulation. No acute risk is expected from exposure to spiromesifen.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to spiromesifen from food and water will utilize 31% of the chronic population adjusted dose (cPAD) for the U.S. population, 23% of the cPAD for all infants less than 1 year old, and 38% of the cPAD for children 1-2 years old, the most highly exposed population subgroups. There are no residential uses for spiromesifen that result in chronic residential exposure to spiromesifen. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the cPAD.

3. Short- and Intermediate-term risk . Short- and intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Spiromesifen is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which do not exceed the Agency's level of concern.

4. Aggregate cancer risk for U.S. population . Spiromesifen is not expected to pose a cancer risk.

5. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to spiromesifen residues.

Adequate analytical enforcement methodologies, high-performance liquid chromatography (HPLC)/mass spectrometry (MS)/MS, exist and have been successfully validated by independent laboratories.

There are no international residue limits for spiromesifen listed in CODEX.

Several comments were received from one private citizen objecting to pesticide body load, registrant profiteering, establishing tolerances, pollution by pesticides, and lack of notification when pesticides are applied to neighboring areas. The Agency has received similar comments from this commenter on numerous previous occasions. Refer to Federal Register 70 FR 37686 (June 30, 2005), 70 FR 1354 (January 7, 2005), and 69 FR 63096-63098 (October 29, 2004) for the Agency's response to these objections.

Therefore, the tolerance is revised for combined residues of the insecticide/miticide spiromesifen (2-oxo-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-4-yl 3,3-dimethylbutanoate) and its enol metabolite (4-hydroxy-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-2-one), calculated as the parent compound equivalents, in or on vegetable, fruiting, crop group 8 to 0.45 ppm. Also, the tolerance is established for inadvertent or indirect combined residues of the insecticide/miticide spiromesifen (2-oxo-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-4-yl 3,3-dimethylbutanoate), its enol metabolite (4-hydroxy-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-2-one), and its metabolites containing the 4-hydroxymethyl moiety (4-hydroxy-3-[4-(hydroxymethyl)-2,6-dimethylphenyl]-1-oxaspiro[4.4]non-3-en-2-one), calculated as the parent compound equivalents, in or on oat, forage at 0.20 ppm; oat, grain at 0.03 ppm; oat, hay at 0.25 ppm; and oat, straw at 0.25 ppm.

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Authorized by 42 U.S.C. 701(a)(3), the HTPC is a grant program funded and administered by the Health Resources and Services Administration's (HRSA) Maternal and Child Health Bureau (MCHB). Its purpose is to stimulate innovative community-based programs that employ prevention strategies to promote access to health care for children and their families nationwide by providing grant funds to implement a new or enhance an existing child health initiative. Currently, there are 58 HTPC funded projects. In fiscal year (FY) 2006, 49 projects are continuing grantees and 9 are newly funded.

Since the inception of this grant program in 1989, the HTPC has issued a programmatic requirement in its guidance that grant applicants must demonstrate the capability to meet cost participation goals by securing non-Federal matching funds and/or in-kind resources for the second through fifth years of the project. One of the key goals of this initiative is that funded programs are to be sustainable beyond the 5-year Federal funding period. In 1999, a formal evaluation of the HTPC The Health Tomorrows Partnership for Children Program in Review: Analysis and Findings of a Descriptive Survey was completed, and the authors concluded that the required match fosters long-term sustainability and leveraging of community resources. There was a 70 percent sustainability rate for those projects with activities that were sustained after the Federal funding period.

This Final Rule will formally introduce a cost participation component to the HTPC grant program, thus requiring its grantees to contribute non-Federal matching funds and/or in-kind resources in years 2 through 5 of the 5-year project period equal to two times the amount of the Federal Grant Award or such lesser amount determined by the Secretary for good cause shown. The non-Federal matching funds and/or in-kind resources must come from non-Federal funds, including, but not limited to, individuals, corporations, foundations in-kind resources, or State and local agencies. Documentation of matching funds would be required (i.e., specific sources, funding level, in-kind contributions). Reimbursement for services provided to an individual under a State plan under Title XIX will not be deemed “non-Federal matching funds” for the purposes of this provision.

The public was invited to respond to Notice of Proposed Rulemaking (NPRM), which was published in the Federal Register on December 27, 2005 (70 FR 76435-76436). The NPRM provided for a 60-day comment period. We received no comments from the public.

HRSA has examined the economic implications of this Final Rule as required by Executive Order 12866. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety and other advantages; distributive impacts; and equity). Executive Order 12866 classifies a rule as significant if it meets any one of a number of specified conditions, including: having an annual effect on the economy of $100 million, adversely affecting a sector of the economy in a material way, adversely affecting competition, or adversely affecting jobs. A regulation is also considered a significant regulatory action if it raises novel legal or policy issues.

HRSA concludes that this Final Rule is a significant regulatory action under the Executive Order since it raises novel legal and policy issues under Section 3(f)(4). HRSA concludes, however, that this Final Rule does not meet the significance threshold of $100 million effect on the economy in any one year under Section 3(f)(1).

Inclusion of this rule will greatly enhance grant recipients' ability to achieve the HTPC goal/performance measure of program sustainability beyond the 5-year Federal funding period.

The Final Rule does not impose any new data collection requirements.

This is a synopsis of the Memorandum Opinion and Order in MB Docket No. 00-53, adopted January 10, 2007, and released January 12, 2007. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will not send a copy of this Memorandum Opinion and Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the petition for reconsideration was dismissed.

This is a summary of the Commission's Report and Order and Order on Reconsideration, in WT Docket Nos. 04-140 and 05-235; FCC 06-178, adopted December 15, 2006 and released December 19, 2006. The complete text of this document is available for inspection and copying during normal business hours in the FCC's Reference Information Center, 445 12th Street, SW., Room CY-A257, Washington, DC. Alternative formats (Braille, large print, electronic files, audio format) are available for people with disabilities by sending an e-mail to FCC504@fcc.gov or, calling the Consumer and Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). The Order also may be downloaded from the Commission's Web site at http://www.fcc.gov/.

1. In this Report and Order and Order on Reconsideration the Commission adopts changes to its part 97 rules to revise the examination requirements for obtaining a General Class or Amateur Extra Class amateur radio operator license, revises the operating privileges for Technician Class licensees to include the operating privileges that are authorized to Novice Class licensees, and authorizes automatically controlled digital stations to operate in the 3585-3600 kHz frequency segment. The overall effect of this action is to further the public interest by encouraging individuals who are interested in communications technology, or who are able to contribute to the advancement of the radio art, to become amateur radio operators; and eliminating a requirement that is now unnecessary and may discourage amateur service licensees from advancing their skills in the communications and technical phases of amateur radio. The changes adopted in this Report and Order and Order on Reconsideration were proposed in the Notice of Proposed Rulemaking at 70 FR 51705, August 31, 2005. Over 3800 comments on the proposed rule changes were received and changes to the proposed rules based on these comments are included in this Report and Order and Order on Reconsideration.

2. Specifically, the Commission (1) removes the five wpm telegraphy examination from the examination requirements for the General Class and Amateur Extra Class operator licenses; (2) revises the operating privileges for Technician Class licensees to include the High Frequency operating privileges that are authorized to Novice Class and Technician Plus Class licensees; and (3) authorizes automatically controlled digital stations to transmit in the 3585-3600 kHz segment of the 80 m band. The effect of these revisions are to eliminate unnecessary requirements from the amateur service license examination system and to provide licensees with greater flexibility in the utilization of amateur service frequencies.

3. This document does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

4. The Commission will send a copy of the Report and Order and Order on Reconsideration, including this Final Regulatory Flexibility Certification, in a report to be sent to Congress and the Congressional Budget Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order and Order on Reconsideration, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA and the Final Regulatory Flexibility Certification will also be published in the Federal Register .

5. In this Report and Order and Order on Reconsideration, we amend the rules that specify how an individual who has qualified for an amateur service operator license can use an amateur radio station consistent with the basis and furthering the purpose of the amateur service. The amended rules apply exclusively to individuals who are licensees in the amateur radio service. Given the definition of a “small entity,” none of these individuals are small entities as the term is used in the RFA. Therefore, we certify that the rules reflected in this Report and Order and Order on Reconsideration will not have a significant economic impact on a substantial number of small entities.

6. Pursuant to sections 4(i), 303(f), 303(r), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 154 (i), 303(f), 303(r) and 332, the rules are amended as specified below.