This rule is issued under Marketing Order No. 987, as amended (7 CFR part 987), regulating the handling of dates grown or packed in Riverside County, California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California date handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable dates beginning October 1, 2007, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule continues in effect the action that decreased the assessment rate established for the committee for the 2007-08 and subsequent crop years from $0.95 per to $0.75 per hundredweight of dates.

The California date marketing order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the committee are producers and handlers of California dates. They are familiar with the committee's needs and with the costs for goods and services in their local area, and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2005-06 and subsequent crop years, the committee recommended, and USDA approved, an assessment rate that would continue in effect from crop year to crop year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other information available to USDA.

The committee met on June 21, 2007, and unanimously recommended 2007-08 expenditures of $209,182 and an assessment rate of $0.75 per hundredweight of California dates. In comparison, last year's budgeted expenditures were $127,485. The assessment rate of $0.75 is $0.20 lower than the rate currently in effect. The committee believes that the assessment rate should be reduced, because the 2006-07 crop was 3 million pounds larger than expected, resulting in $105,652 in accumulated cash reserves available for 2007-08 expenditures. Section 987.72(c) states that the reserve may not exceed 50 percent of the average of expenses incurred during the most recent five preceding crop years. The committee believes the decreased assessment rate will allow it to reduce the amount it holds in cash reserves to $30,115, by September 30, 2008, the end of the 2007-08 crop year. That reserve amount would be within the limits provided in § 987.72(c).

Proceeds from sales of cull dates are deposited in a surplus account for subsequent use by the committee in covering the surplus pool share of the committee's expenses. Handlers may also dispose of cull dates of their own production within their own livestock-feeding operation; otherwise, such cull dates must be shipped or delivered to the committee for sale to non-human food product outlets. Pursuant to § 987.72(b), the committee is authorized to temporarily use funds derived from assessments to defray expenses incurred in disposing of surplus dates. All such expenses are required to be deducted from proceeds obtained by the committee from the disposal of surplus dates. For the 2007-08 crop year, the committee estimated that $2,000 from the surplus account would be needed temporarily to defray committee expenses incurred in disposing of surplus dates.

The major expenditures recommended by the committee for the 2007-08 crop year include $87,312 for general and administrative programs, $67,870 for promotional programs, $24,000 for marketing and media consulting, $5,000 for moving expenses, and $5,000 for updating marketing materials. The committee also budgeted $20,000 as a contingency reserve for other marketing and promotion projects that it may wish to support later in the year.

By comparison, expenditures for the 2006-07 crop year were $127,485. Major expenditures recommended by the committee included $75,095 for general and administrative expenses, $22,390 for promotional expenses, and $30,000 for date nutritional analysis.

The assessment rate of $0.75 per hundredweight of assessable dates was derived by applying the following formula where:

A= 2006-07 reserve on 10/1/07 ($105,652);

B= 2007-08 reserve on 9/30/07 ($30,115);

C= 2007-08 expenses ($209,182);

D= Cull Surplus Fund ($2,000);

E= Assessment Refund ($10,855); and

F= 2007-08 expected shipments (190,000 hundredweight).

(B−A+C−D+E)/F.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other available information.

Although this assessment rate is effective for an indefinite period, the committee will continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The committee's 2007-08 budget and those for subsequent crop years will be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 124 producers of dates in the production area and approximately 10 handlers subject to regulation under the marketing order. The Small Business Administration (SBA) (13 CFR 121.201) defines small agricultural producers as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $6,500,000.

An industry profile shows that four of the 10 handlers (40 percent) had date sales over $6,500,000 and could be considered large handlers by the SBA. Six of the 10 handlers (60 percent) had date sales of less than $6,500,000 and could be considered small handlers. An estimated 7 producers, or less than 6 percent, of the 124 total producers, would be considered large producers with annual incomes over $750,000. The remaining producers have incomes less than $750,000. The majority of handlers and producers of California dates may be classified as small entities.

This rule continues in effect the action that decreased the assessment rate established for the committee and collected from handlers for the 2007-08 and subsequent crop years from $0.95 to $0.75 per hundredweight of dates handled. The committee unanimously recommended 2007-08 expenditures of $209,182 and an assessment rate of $0.75 per hundredweight of dates, which is $0.20 lower than the 2005-06 rate, currently in effect. The committee recommended decreasing the assessment rate to reduce its cash reserve levels.

The quantity of assessable dates for the 2007-08 crop year is estimated at 19,000,000 pounds. Thus, the $0.75 rate should provide $142,500 in assessment income and, with reserve funds of $105,652 and the $2,000 contribution from the surplus program, will be adequate to meet the 2007-08 crop year expenses.

The major expenditures recommended by the committee for the 2007-08 crop year include $87,312 for general and administrative programs, $67,870 for promotional programs, $24,000 for marketing and media consulting, $5,000 for moving expenses, and $5,000 for updating marketing materials. The committee also budgeted $20,000 as a contingency reserve for other marketing and promotion projects that it may wish to support later in the year.

The committee recommended a reduced assessment rate because the unanticipated increased date production during the 2006-07 crop year resulted in a larger carry-in of funds than the committee prefers. The decrease in the assessment rate would allow the committee to reduce its cash reserves to an appropriate level.

The committee reviewed and unanimously recommended 2007-08 crop year expenditures of $209,182. Prior to arriving at this budget, the committee considered information from various sources, such as the committee's Marketing Subcommittee. Alternative expenditure levels were an option available to the committee, but given the windfall from the larger-than-expected 2006-07 crop, it was ultimately determined that a $209,182 budget would be most beneficial to the industry. The assessment rate of $0.75 per hundredweight of dates was then derived, based upon the committee's estimates of the available reserve, income, handler assessment refund, and anticipated expenses.

A review of historical information and preliminary information pertaining to the 2007-08 crop year indicates that the grower price for the 2007-08 crop year could range between $45 and $50 per hundredweight of dates. Therefore, the estimated assessment revenue for the 2007-08 crop year as a percentage of total grower revenue is approximately 1.67 to 1.5 percent, respectively.

This action continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the committee's meeting was widely publicized throughout the California date industry and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues. Like all committee meetings, the June 21, 2007 meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

This action imposes no additional reporting or recordkeeping requirements on either small or large California date handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

An interim final rule concerning this action was published in the Federal Register on September 7, 2007 (72 FR 51354). Copies of that rule were also mailed or sent via facsimile to all date handlers. Finally, the interim final rule was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period was provided for interested persons to respond to the interim final rule. The comment period ended on November 6, 2007, and no comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture regulates the importation of animals and animal products into the United States to guard against the introduction of animal diseases not currently present or prevalent in this country. The regulations in 9 CFR parts 93, 94, and 95 prohibit or restrict the importation into the United States of specified animals and animal products to prevent the introduction into the United States of various animal diseases, including bovine spongiform encephalopathy (BSE).

In a final rule published in the Federal Register on January 4, 2005 (70 FR 460-553, Docket No. 03-080-3), we amended the regulations regarding the importation of animals and animal products to establish a category of regions that present a minimal risk of introducing BSE into the United States via live ruminants and ruminant products and byproducts, and added Canada to this category. We also established conditions for the importation of certain live ruminants and ruminant products and byproducts from such regions. These regulations are in 9 CFR parts 93, 94, 95, and 96.

On November 28, 2005, we published in the Federal Register an interim rule (70 FR 71213-71218, Docket No. 03-080-8) that (1) broadened who is authorized to break the seals on a means of conveyance carrying certain ruminants from Canada and (2) amended the provisions regarding the transiting through the United States of certain ruminant products from Canada to allow for limited direct transloading of the products from one means of conveyance to another in the United States.

On March 14, 2006, we published in the Federal Register a technical amendment (71 FR 12994-12998, Docket No. 03-080-9) that clarified our intent with regard to certain provisions in the January 2005 final rule and corrected several inconsistencies within the rule.

On August 9, 2006, we published in the Federal Register a proposed rule  1 (71 FR 45439-45444, Docket No. APHIS-2006-0026) to amend the regulations in 9 CFR parts 93, 94, and 95 to remove several restrictions regarding the identification of ruminants and the processing of ruminant materials from BSE minimal-risk regions, as well as BSE-based restrictions on gelatin derived from bovine hides.

We solicited comments concerning our August 2006 proposed rule (referred to below as the “proposed rule”) for 60 days ending October 10, 2006. In a document published in the Federal Register on November 9, 2006 (71 FR 65758-65759, Docket No. APHIS-2006-0026), we reopened and extended the deadline for comments until November 24, 2006.

We received 10 comments in response to our proposed rule. They were from organizations representing U.S. producers of livestock and livestock products, renderers, and other members of the public. The comments dealt with live animals as well as animal products. We discuss the comments below by topic.

On September 18, 2007, we published in the Federal Register a final rule (72 FR 53113-53379, Docket No. APHIS-2006-0041; effective November 19, 2007) that established conditions for the importation into the United States from BSE minimal-risk regions of certain bovines and bovine commodities that had not been made eligible for importation by our January 2005 final rule. Some of the changes we made to the regulations in our September 2007 final rule affected regulatory text we had proposed to change in our August 2006 proposed rule, either by rewording text, deleting provisions that would have been changed by our August 2006 proposed rule, or redesignating CFR paragraph references. Consequently, we have made changes to this final rule to reflect the changes made by our September 2007 final rule. In our discussion of this final rule, we identify where those changes occur.

One of the changes to the regulations we proposed in our August 2006 proposed rule was a broadening of the options of acceptable forms of individual identification of bovines, sheep, and goats exported to the United States from BSE minimal-risk regions (currently only Canada). Under the current regulations in § 93.436, live bovines imported from a BSE minimal-risk region must be individually identified by means of an official eartag of the country of origin. The eartag must be determined by the APHIS Administrator to meet standards equivalent to those for official eartags in the United States, as defined in 9 CFR part 71, and to be traceable to the premises of origin. There is a similar requirement for sheep and goats in § 93.419. However, because § 93.419 refers specifically to sheep and goats from Canada, that section requires that sheep and goats from Canada be individually identified by an official Canadian Food Inspection Agency eartag.

In our proposed rule, we proposed to allow for means of individual identification other than eartags for the imported bovines, sheep, and goats. We proposed to provide that the animals must be officially identified with individual identification before the animals' arrival at the port of entry into the United States. We proposed to define officially identified to mean “individually identified by means of an official identification device or method.” In § 93.400 of the current regulations, official identification device or method is defined as a means of officially identifying an animal or group of animals using devices or methods approved by the Administrator, including, but not limited to, official tags, tattoos, and registered brands when accompanied by a certificate of inspection from a recognized brand inspection authority. We proposed to add a sentence at the end of that definition to make it clear that, for animals intended for importation into the United States, the particular device or method of identification must have been approved by the Administrator for that type of import before the animal is exported to the United States.

Several commenters expressed concern that our proposed change regarding animal identification would hinder the ability to conduct rapid traceback of cattle to their herd of origin in the event BSE is diagnosed in an animal imported from a BSE minimal-risk region. One of the commenters recommended that the identification requirements in the current regulations be retained. Another commenter recommended that the regulations explicitly require that all cattle from a BSE minimal-risk region be individually identified with a device or method that is visible and readable and that includes a unique animal identification number that enables traceback to the herd of origin.

We agree with the commenters that the individual identification of cattle—and sheep and goats—imported from a BSE minimal-risk region must be unique to individual animals and allow for rapid traceback of an animal to its herd of origin. The intent of the change we proposed was not to remove that requirement from the regulations, but simply to allow, in addition to eartags, other forms of individual identification that meet those criteria. That is the reason we proposed to provide in the definition of official identification device or method that the identification used must have been approved by the Administrator for that type of import before the animal is exported to the United States.

To ensure that there is no misunderstanding of our intent, in this final rule we are specifying in § 93.436(a)(2) and (b)(3) that, before arrival at the port of entry into the United States, each bovine imported into the United States from a BSE minimal-risk region must be officially identified with unique individual identification that is traceable to the premises of origin of the animal. 2 In § 93.419(c), we are including a similar identification requirement for sheep and goats imported from Canada.

In our August 2006 proposed rule, we proposed to replace the word “eartag” with the term “official identification” in what, at that time, were paragraphs (b)(8) and (b)(11) of § 93.436. However, our September 2007 final rule removed § 93.436(b)(8) and (b)(11).

In addition to addressing the issue of the types of allowable individual identification, two commenters expressed support for identification provisions of the current regulations that we did not propose to change. These are: (1) The provision that no person may alter, deface, remove, or otherwise tamper with the official identification while the animal is in the United States or moving into or through the United States, except that the identification may be removed at slaughter; and (2) the requirement that cattle imported from a BSE minimal-risk region for other than immediate slaughter be identified, before export to the United States, with a permanent mark that indicates the country of origin.

In § 94.19(f)(2) of our proposed rule, we proposed to allow the importation into the United States of gelatin derived from the hides of bovines from BSE minimal-risk regions, provided the gelatin has not been commingled with materials ineligible for entry into the United States. In accordance with the regulations as amended by our September 2007 final rule, gelatin imported into the United States from a BSE minimal-risk region must either (1) be derived from the bones of bovines subject to a ruminant feed ban equivalent to the requirements established by the U.S. Food and Drug Administration at 21 CFR 589.2000 and from which specified risk materials were removed (§ 94.19(f)), or (2) be imported for use in human food, human pharmaceutical products, photography, or some other use that will not result in the gelatin coming into contact with ruminants in the United States (§ 94.18(c)).

A number of commenters supported allowing the importation of gelatin derived from the hides of bovines from BSE minimal-risk regions.

One commenter stated that it does not make sense to allow the importation of gelatin derived from hides of bovines from BSE minimal-risk regions at the same time the regulations restrict the importation of gelatin derived from bones. We disagree that it does not make sense to allow the importation of gelatin derived from hides. Bovine hides have not demonstrated BSE infectivity, even in infected animals, and the safety of bovine hides with regard to BSE is recognized internationally. The World Organization of Animal Health (commonly referred to as the OIE) supported that conclusion in its recommendation that gelatin derived exclusively from the hides of bovines not be subject to import restrictions (OIE Terrestrial Animal Health Code (the Code), 2006, Article 2.3.13.1). The European Commission Scientific Steering Committee reached a similar conclusion regarding the lack of BSE infectivity in hide-derived gelatin, provided contamination with potentially infected materials is avoided (European Commission's Updated Opinion on the Safety with Regard to TSE Risk of Gelatine Derived from Ruminant Bones or Hides, December 2002).

In contrast, gelatin derived from the bones of bovines from BSE minimal-risk regions can pose a risk of infectivity unless the risk mitigation measures in §§ 94.18(c) and 94.19(f), described above, are taken. The higher BSE risk of bone-derived gelatin is recognized internationally. The OIE Code contains BSE risk mitigation guidelines for gelatin derived from bovines (Article 2.3.13.15). The European Commission Scientific Steering Committee concluded in its Updated Opinion that “the risk of transmissible spongiform infectivity is much higher with bones, as compared to hides.”

Therefore, we are making no changes based on this comment.

The current regulations in § 95.4(c) allow the importation of certain materials derived from nonruminants from BSE minimal-risk regions only if all steps of processing and storing the material are carried out in a facility that has not been used for the processing and storage of materials derived from ruminants that have been in any region listed in § 94.18(a) of the regulations. The regions listed in § 94.18(a) include BSE minimal-risk regions, as well as regions in which BSE exists and regions that present an undue risk of introducing BSE into the United States.

In our proposed rule, we proposed to amend § 95.4(c) so that nonruminant materials processed or stored in BSE minimal-risk regions would no longer need to be processed or stored in facilities separate from those used to process or store materials derived from ruminants from BSE minimal-risk regions.

Several commenters supported the proposed change to § 95.4(c).

One commenter stated that our intent regarding the proposed change to § 95.4(c) was not easily understandable from the wording we used in the regulatory text of the proposed rule. In § 95.4(c)(2) and (3) of the proposed rule, we made reference to regions listed in § 94.18(a)(1), (a)(2), and (a)(3). Those paragraphs list the following types of regions: § 94.18(a)(1) lists regions in which BSE exists; § 94.18(a)(2) lists regions that, because of import requirements less restrictive than those that would be acceptable for import into the United States and/or because of inadequate surveillance, present an undue risk of introducing BSE into the United States; and § 94.18(a)(3) lists BSE minimal-risk regions (currently only Canada). The commenter stated that the regulations would be clearer if, when referring to § 94.18(a)(1), (a)(2), and (a)(3), we also indicated the BSE category of regions listed in those paragraphs.

Because in § 95.4(c) as proposed we reference paragraphs that contain lists that can be easily described, we agree it would be useful to the reader if those references included a description of the content of each of those paragraphs. Therefore, we are including such descriptions in § 95.4(c)(2) and (c)(3) in this rule.

One commenter addressed the provisions in § 95.4 regarding the importation of tallow. The commenter stated that APHIS should follow the OIE guideline of allowing the importation from BSE minimal-risk regions of tallow with no more than 0.15 percent impurities.

We did not propose to make any changes to the regulations regarding the importation of tallow from BSE minimal-risk regions. However, the commenter is correct that the wording in § 95.4 regarding tallow differs from the OIE guidelines in one respect. One of the criteria in § 95.4 for the importation of tallow derived from bovines from BSE minimal-risk regions is that the tallow be composed of less than 0.15 percent insoluble impurities. This differs slightly from the OIE guidelines, which recommend allowing the importation of tallow with a maximum level of insoluble impurities of 0.15 percent in weight.

The intent of our January 2005 final rule, as indicated on page 501 of the preamble to that rule, was to allow the importation of tallow composed of a maximum level of insoluble impurities of 0.15 percent in weight. However, the amendatory text of that rule incorrectly used the phrase “less than 0.15 percent.” Therefore, to make the wording of the regulations consistent with our stated intent, in this rule we are amending § 95.4 to require that bovine-derived tallow imported from a BSE minimal-risk region be composed of a maximum level of insoluble impurities of 0.15 percent in weight.

In our proposed rule, we proposed to specify in § 94.19(f)(1) (redesignated as § 94.19(g)(1) in our September 2007 final rule) as one of the conditions for the importation of gelatin derived from the bones of bovines from BSE minimal-risk regions that the gelatin not have been commingled with materials ineligible for entry into the United States. Other than that, we did not propose to change the provisions regarding gelatin derived from bones. One commenter, however, objected to the current regulations that allow the importation of bone-derived gelatin from BSE minimal-risk regions (currently only Canada). The commenter contended that the current regulations are erroneously based on the determination that Canada is a BSE minimal-risk region, and that Canada should instead be considered a country of undetermined BSE risk according to OIE recommendations.

For similar reasons, a commenter opposed our proposal to no longer require that nonruminant materials processed or stored in BSE minimal-risk regions be processed or stored in facilities separate from those used to process or store materials derived from ruminants from BSE minimal-risk regions. The commenter expressed concern regarding what the commenter termed the “undetermined prevalence” of BSE in Canada and the detection of BSE in cows that were born after Canada implemented its feed ban. The commenter stated that APHIS should reconsider the proposed change on the basis that BSE infectivity is known to have circulated in Canada as recently as 2002.

We are making no changes based on these comments. APHIS recognized Canada as a BSE minimal-risk region in our January 2005 final rule that was published following notice-and-comment rulemaking. We did not propose to revisit that determination in our August 2006 proposed rule and do not consider such a change to the BSE risk status of Canada to be scientifically supportable or appropriate. One of the conditions for being recognized by APHIS as a BSE minimal-risk region is that the region have in place and maintain risk mitigation measures adequate to prevent widespread exposure and/or establishment of the disease. In classifying Canada as a BSE minimal-risk region in our January 2005 final rule, we determined that such mitigation measures are in place and are maintained in Canada.

We do not consider the diagnosis of BSE in several cows born after the establishment of the Canadian feed ban to be unexpected. Experience worldwide has demonstrated that, even in countries with an effective feed ban in place, BSE has occurred in cattle born after a feed ban was implemented. No regulatory effort can ensure 100 percent compliance. Isolated incidents, such as feed made from nonprohibited material being contaminated with prohibited material during processing, can occur due to human error. However, such isolated incidents are not epidemiologically significant and do not contribute to further spread of BSE, especially when considered in light of the entire risk pathway and its attendant risk mitigations.

One commenter made the general request that APHIS delete from the regulations the provisions regarding imports from BSE minimal-risk regions until further research and surveillance is done regarding all transmissible spongiform encephalopathies. The commenter did not address any specific provision of our proposal, and we are making no changes based on the comment.

One commenter requested that APHIS not require that products imported from a BSE minimal-risk region under the provisions of § 95.4 be accompanied by original signed certification, provided certain specified risk mitigation measures are in place. We consider the issue raised by the commenter to be outside the scope of the proposed rule, and are making no changes based on the comment. However, we will take the commenter's request into consideration in assessing the need for future rulemaking.

Several commenters expressed general opposition to the importation of ruminants from Canada, but did not specifically address provisions of the proposed rule. We are making no changes based on those comments.

In addition to those discussed above, we are making several other nonsubstantive changes in this final rule to be consistent with wording changes and paragraph redesignations made in our September 2007 final rule.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

The Regulatory Flexibility Act requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions. We have prepared a final regulatory flexibility analysis, which is set forth below.

In a final rule published in January 2005, we established a category of regions that present a minimal risk of introducing BSE into the United States via live ruminants and ruminant products and byproducts, and added Canada to that category. We also established conditions for the importation of certain live ruminants and ruminant products and byproducts from such regions. A final rule published in September 2007 included conditions for the importation of additional commodities from BSE minimal-risk regions.

In this rule, we are removing certain restrictions on imports from BSE minimal-risk regions that concern animal identification, the derivation of bovine gelatin, and the processing of ruminant and nonruminant materials. We have determined these restrictions are not necessary to prevent the introduction of BSE into the United States.

Instead of limiting the type of allowable individual identification on bovines, sheep, and goats imported from a BSE minimal-risk region to an official eartag of the country of origin, we are allowing unique individual identification of animals by means other than eartags, provided the APHIS Administrator has approved the manner of identification for the type of animal intended for importation and the identification is traceable to the premises of origin of the animal.

Instead of limiting the importation of bovine-derived gelatin from BSE minimal-risk regions to gelatin derived from bones, we are allowing the importation of hide-derived gelatin, provided certain conditions are met.

We are also allowing nonruminant material that is processed in BSE minimal-risk regions—such as processed animal protein, tankage, offal, certain tallow, processed fats and oils, and derivatives of processed animal protein, tankage, and offal—to be processed in facilities that also process material derived from ruminants from the minimal-risk region.

We address below the potential economic effect of each of these changes.

Giving owners of bovines, sheep, and goats in BSE minimal-risk regions the option of individually identifying animals being exported to the United States by means other than eartags is not expected to affect U.S. small entities. This amendment simply acknowledges that there are effective means of individual identification other than eartags, as long as the chosen device or method has been approved by the APHIS Administrator before the animal is exported to the United States. The unique individual identification must be traceable to the premises of origin of the animal (as is required of the eartags currently used), a disease control measure that will benefit all U.S. cattle producers, the majority of which are small entities.

This amendment, by allowing the importation of gelatin derived from bovine hides in addition to gelatin derived from bovine bones, could affect U.S. entities by providing an additional source of gelatin imported from Canada.

Gelatin is derived from collagen, an insoluble fibrous protein that is the principal constituent of connective tissues and bones. The main raw materials used in gelatin production are cattle bones, cattle hides, and porkskins. Gelatin recovered from bone is used primarily in photographic applications. Porkskin is currently the most significant raw material source for production of edible gelatin in North America. Cattle hides are the least used raw material for gelatin in North America today. Cattle hides sourced by member companies of the Gelatin Manufacturers Institute of America for the production of gelatin for food use are purchased from a small number of tanneries in the United States.

We do not have information about the quantity of hide-derived gelatin that would be imported from Canada because of this rule, nor do we have an estimate of the number of U.S. small entities that would be affected. Production of animal hides is classified by the North American Industry Classification System (NAICS) under “Animal (except Poultry) Slaughtering” (NAICS 311611), for which the small entity definition is businesses with not more than 500 employees. In the initial regulatory flexibility analysis we conducted for our August 2006 proposed rule, we requested information that would allow us to better understand the number and size of entities that might be affected by allowing hide-derived bovine gelatin to be imported from BSE minimal-risk regions (currently only Canada), but we received no information of this type.

This amendment removes the requirement that nonruminant material that is processed in BSE minimal-risk regions be processed in a facility that does not also process material derived from ruminants from the minimal-risk region. If this amendment results in changes in the amounts of nonruminant material imported by the United States, then U.S. entities could be affected. Affected nonruminant material may include processed animal protein, tankage, offal, certain tallow, processed fats and oils, and derivatives of processed animal protein, tankage, and offal.

Facilities that produce these commodities are classified under “Rendering and Meat By-product Processing” (NAICS 311613), for which the small entity definition is businesses with not more than 500 employees. We do not have a basis for estimating the change in imports of Canadian nonruminant materials that might result from this rule, nor do we know the number or size of U.S. entities that will be affected. In our initial regulatory flexibility analysis, we requested information from the public regarding the number of small entities that might be affected and the likely magnitude of the effect, but we received no information of this type.

We do not foresee any significant economic effects on small entities because of this rule. There are no significant alternatives to this rule that would accomplish the stated objectives. Without the rule, unnecessary restrictions on certain exports to the United States from BSE minimal-risk regions will continue. With the rule, animal exporters in BSE minimal-risk regions will have the option of individually identifying bovines, sheep, and goats being exported to the United States by means other than eartags; U.S. entities will be allowed to import hide-derived, in addition to bone-derived, gelatin from BSE minimal-risk regions; and ruminant and nonruminant materials that are processed in the same facility in a BSE minimal-risk region will be allowed to be exported to the United States.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Comments Invited

Interested persons are invited to submit such written data, views, or arguments as they may desire. Identify the regulatory docket or special condition number and submit comments in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. If you wish the FAA to acknowledge receipt of the comments submitted in response to this notice, include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE281.” The postcard will be date stamped and returned to the commenter.

On October 5, 2005, Embraer S.A. applied for a type certificate for their new Model EMB-500. The Model EMB-500 is a normal category, low-winged monoplane with “T” tailed vertical and horizontal stabilizers, retractable tricycle type landing gear and twin turbofan engines mounted on the aircraft fuselage. Its design characteristics include a predominance of metallic construction. The maximum takeoff weight is 9,700 pounds, the V MO /M MO is 275 KIAS/M 0.70 and maximum altitude is 41,000 feet.

14 CFR part 23 has historically addressed fire protection through prevention, identification, and containment. Prevention has been provided through minimizing the potential for ignition of flammable fluids and vapors. Identification has been provided by locating engines within the pilots' primary field of view and/or with the incorporation of fire detection systems. This has provided both rapid detection of a fire and confirmation when it was extinguished. Containment has been provided through the isolation of designated fire zones, through flammable fluid shutoff valves, and firewalls.

This containment philosophy also ensures that components of the engine control system will function effectively to permit a safe shutdown of an engine. However, containment has only been demonstrated for 15 minutes. If a fire occurs in traditional part 23 airplanes, the appropriate corrective action is to land as soon as possible. For a small, simple airplane originally envisioned by part 23, it is possible to descend and land within 15 minutes; thus, the occupants can safely exit the airplane before the firewall is breached. These simple airplanes normally have the engine located away from critical flight control systems and primary structure. This has ensured that, throughout a fire event, a pilot can continue safe flight, and it has made the prediction of fire effects relatively easy. Other design features of these simple aircraft, such as low stall speeds and short landing distances, ensure that even if an off-field landing occurs, the potential for the outcome being catastrophic has been minimized.

Title 14 CFR part 23 did not envision the type of configuration of the Model EMB-500 airplane. The Model EMB-500 incorporates two turbofan engines located on pylons on either side of the aft fuselage. These engines are not in the pilots' field of view. With the location on the aft fuselage, the ability to visually detect a fire is minimal.

Under the provisions of 14 CFR 21.17, Embraer S.A. must show that the Model EMB-500 meets the applicable provisions of 14 CFR part 23, as amended by Amendments 23-1 through 23-55, thereto.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the Model EMB-500 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model EMB-500 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

Special conditions, as appropriate, as defined in 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.17(a)(2).

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

The Model EMB-500 incorporates two turbofan engines located on pylons on either side of the aft fuselage. These engines are not in the pilots' field of view. The effects of a fire in such a compartment are more varied and adverse than the typical engine fire in a simple part 23 airplane. With the location on the aft fuselage, the ability to visually detect a fire is minimal. However, the ability to extinguish an engine fire becomes extremely critical with the Model EMB-500 engine location.

As discussed above, these special conditions are applicable to the Model EMB-500. Should Embraer S. A. apply later for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well under § 21.101(a)(1).

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the design approval 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.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register ; however, as the certification date for the Embraer S. A. Model EMB-500 is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

This action affects only certain novel or unusual design features on one model, Model EMB-500, of airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Embraer S. A. Model EMB-500 airplanes.

1. SC 23.1195—Add the requirements of § 23.1195 while deleting the phrase, “For commuter category airplanes.”

(a) Fire extinguishing systems must be installed and compliance shown with the following:

(1) Except for combustor, turbine, and tailpipe sections of turbine-engine installations that contain lines or components carrying flammable fluids or gases for which a fire originating in these sections is shown to be controllable, a fire extinguisher system must serve each engine compartment;

(2) The fire extinguishing system, the quantity of extinguishing agent, the rate of discharge, and the discharge distribution must be adequate to extinguish fires. An individual “one-shot” system may be used; and

(3) The fire extinguishing system for a nacelle must be able to simultaneously protect each compartment of the nacelle for which protection is provided.

(b) If an auxiliary power unit is installed in any airplane certificated to this part, that auxiliary power unit compartment must be served by a fire extinguishing system meeting the requirements of paragraph (a)(2) of this section.

2. SC 23.1197—Add the requirements of § 23.1197 while deleting the phrase, “For commuter category airplanes.”

The following applies:

(a) Fire extinguishing agents must—

(1) Be capable of extinguishing flames emanating from any burning fluids or other combustible materials in the area protected by the fire extinguishing system; and

(2) Have thermal stability over the temperature range likely to be experienced in the compartment in which they are stored.

(b) If any toxic extinguishing agent is used, provisions must be made to prevent harmful concentrations of fluid or fluid vapors (from leakage during normal operation of the airplane or as a result of discharging the fire extinguisher on the ground or in flight) from entering any personnel compartment, even though a defect may exist in the extinguishing system. This must be shown by test except for built-in carbon dioxide fuselage compartment fire extinguishing systems for which—

(1) Five pounds or less of carbon dioxide will be discharged under established fire control procedures into any fuselage compartment; or

(2) Protective breathing equipment is available for each flight crewmember on flight deck duty.

3. SC 23.1199—Add the requirements of § 23.1199 while deleting the phrase, “For commuter category airplanes.”

The following applies:

(a) Each extinguishing agent container must have a pressure relief to prevent bursting of the container by excessive internal pressures.

(b) The discharge end of each discharge line from a pressure relief connection must be located so that discharge of the fire-extinguishing agent would not damage the airplane. The line must also be located or protected to prevent clogging caused by ice or other foreign matter.

(c) A means must be provided for each fire extinguishing agent container to indicate that the container has discharged or that the charging pressure is below the established minimum necessary for proper functioning.

(d) The temperature of each container must be maintained, under intended operating conditions, to prevent the pressure in the container from—

(1) Falling below that necessary to provide an adequate rate of discharge; or

(2) Rising high enough to cause premature discharge.

(e) If a pyrotechnic capsule is used to discharge the fire extinguishing agent, each container must be installed so that temperature conditions will not cause hazardous deterioration of the pyrotechnic capsule.

4. SC 23.1201—Add the requirements of § 23.1201 while deleting the phrase, “For commuter category airplanes.”

The following apply:

(a) No material in any fire extinguishing system may react chemically with any extinguishing agent so as to create a hazard.

(b) Each system component in an engine compartment must be fireproof.

In Title 21 of the Code of Federal Regulations, Parts 800 to 1299, revised as of April 1, 2007, in part 1271, on page 718, § 1271.22 is reinstated to read as follows:

Prior to 1977, the Commission's procedural regulations only authorized dismissal when the Commission issued a no cause determination, a charge was untimely, or a charge failed to state a claim. In 1977, the Commission adopted three additional bases for dismissal in order to resolve charges that were timely and stated a claim, but where the Commission was unable to issue a determination on the merits for various reasons. These three bases are currently set out in § 1601.18(b) through (d). Paragraph (b) permits dismissal when the charging party fails to cooperate. Paragraph (c) permits dismissal when the charging party cannot be located. Paragraph (d) permits dismissal when the charging party refuses to accept an offer of full relief for the harm alleged in the charge.

In 1995, the Commission adopted Priority Charge Handling Procedures (PCHP) to facilitate flexibility and permit more strategic use of resources. Among other things, PCHP authorized field offices to issue final determinations when further investigation was not likely to lead to evidence establishing a violation of the employment discrimination statutes. Thus, § 1601.18(b) through (d) are no longer needed to accomplish the Commission's case management goals. Their elimination is also consistent with EEOC's procedural regulations governing the Age Discrimination in Employment Act and the Equal Pay Act which do not contain the dismissal bases of failure to cooperate, to locate, and to accept full relief.

In addition, the continued inclusion of these dismissal bases in the regulations is causing unnecessary confusion. There is a split in the courts regarding the proper interpretation of paragraphs (b) through (d). Compare McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002) (dismissing a private plaintiff's claim under the Americans with Disabilities Act (ADA) on the ground that she had failed to exhaust her administrative remedies before the EEOC where the Commission dismissed plaintiff's charge for “failure to cooperate” as set forth in section 1601.18(b)) and Shikles v. Sprint/United Management Company, 426 F.3d 1304 (10th Cir. 2005) (extending the holding of McBride to the Age Discrimination in Employment Act (ADEA)), with Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006) (disagreeing with the Tenth Circuit and holding that the exhaustion requirement under Title VII does not impose a duty to cooperate with the EEOC).

The Commission did not anticipate that dismissals of charges under section 1601.18(b) through (d) would lead to dismissals of suits filed in Federal court. Nor did the Commission intend to impose on charging parties any obligations beyond the two statutory prerequisites recognized by Supreme Court precedent for charges filed under Title VII and the Americans with Disabilities Act  1 : the filing of a timely charge and receipt of a notice of right to sue. See Alexander v. Garner-Denver, 415 U.S. 36, 47 (1974) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). Rather, the Commission intended dismissals under sections 1601.18(b) through (d) as mechanisms to terminate further administrative processing of the charge and to permit the charging party to exercise his or her rights to de novo judicial review.

The Supreme Court long ago established the principle that plaintiffs in employment discrimination suits are entitled to a trial de novo. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At issue in that case was whether an individual could sue an employer under Title VII where “the Commission made no finding on respondent's allegation of racial bias.” Id. at 797-798. The Court unequivocally stated:

The overwhelming majority of charging parties cooperate fully with EEOC during its investigation because cooperation is in their self-interest. They cooperated before the regulation was promulgated and will continue to do so after the regulation is withdrawn. The Commission did not adopt this regulation to increase or encourage cooperation. The regulation was adopted simply as a case management tool. Now, it has outlived its usefulness.

As explained above, we are eliminating 1601.18(b) through (d) because they are no longer necessary and because the Commission did not intend to affect charging parties' rights to de novo judicial review when adopting them. The regulation will no longer provide for dismissals based upon “failure to cooperate” (29 CFR 1601.18(b)), “failure to locate” (29 CFR 1601.18(c)), or “failure to accept full relief” (29 CFR 1601.18(d)).

This is not a “significant regulatory action” within the meaning of section 3 of Executive Order 12866.

This regulation contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

The Commission certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because it does not affect any small business entities. The regulation affects only federal sector employment. For this reason, a regulatory flexibility analysis is not required.

This final rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action concerns agency organization, procedure or practice that does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Throughout this document, the terms “we,” “us,” and “our” refer to EPA. This supplementary information is organized as follows:

On May 30, 2007, the Governor's designee, the Nevada Division of Environmental Protection (NDEP), submitted the Maintenance Plan for the Washoe County 8-Hour Ozone Attainment Area (April 2007) (“Washoe County Ozone Maintenance Plan” or “Ozone Maintenance Plan”) to EPA for approval as a revision to the Washoe County portion of the Nevada State Implementation Plan (SIP). The Washoe County Ozone Maintenance Plan was developed by the Washoe County District Health Department, Air Quality Management Division (Washoe County AQMD) and adopted by the Washoe County District Board of Health (District Board of Health) on April 26, 2007. Washoe County AQMD prepared the plan to provide for continued attainment of the 8-hour ozone national ambient air quality standard (NAAQS) through 2014 and to thereby satisfy the requirements of section 110(a)(1) of the Clean Air Act (CAA or “Act”) and EPA's phase 1 rule implementing the 8-hour ozone NAAQS. The May 30, 2007 SIP revision submittal includes the maintenance plan and related technical appendices, as well as documentation of notice, public hearing, and adoption by the District Board of Health.

For the reasons set forth in this document, and pursuant to section 110(k) of the Act, we are approving the Washoe County Ozone Maintenance Plan as a revision to the Washoe County portion of the Nevada SIP. In so doing, we find that the submitted ozone maintenance plan meets all of the applicable requirements of CAA section 110(a)(1) and our phase 1 rule implementing the 8-hour ozone NAAQS.

Ozone is a gas composed of three oxygen atoms. It is not usually emitted directly into the air, but at ground level is created by a chemical reaction between oxides of nitrogen (NO X ) and volatile organic compounds (VOC) in the presence of sunlight. Ozone has the same chemical structure whether it occurs miles above the earth or at ground-level and can be “good” or “bad,” depending on its location in the atmosphere.

In the earth's lower atmosphere, ground-level ozone is considered “bad.” Motor vehicle exhaust and industrial emissions, gasoline vapors, and chemical solvents as well as natural sources emit NO X and VOC that help form ozone. Ground-level ozone is the primary constituent of smog. Sunlight and hot weather cause ground level ozone to form in harmful concentrations in the air. As a result it is known as a summertime air pollutant. Many urban areas tend to have high levels of “bad” ozone, but even rural areas are also subject to increased ozone levels because wind carries ozone and pollutants that form it hundreds of miles away from their original source. “Good” ozone occurs naturally in the stratosphere approximately 10 to 30 miles above the earth's surface and forms a layer that protects life on earth from the sun's harmful rays.

Breathing ozone can trigger a variety of health problems including chest pain, coughing, throat irritation, and congestion. It can worsen bronchitis, emphysema, and asthma. Ground-level ozone also can reduce lung function and inflame the linings of the lungs. Repeated exposure may permanently scar lung tissue. People with lung disease, children, older adults, and people who are active can be affected when ozone levels are unhealthy.

The CAA requires EPA to set national ambient air quality standards (NAAQS) to protect public health and public welfare. EPA has established a NAAQS for ozone at 0.08 parts per million (ppm), daily maximum 8-hour average. The 8-hour ozone NAAQS is met at an ambient air quality monitoring site when the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. See 40 CFR 50.10 and appendix I.

Washoe County is located in the northwest portion of Nevada and is bounded by California, Oregon, and the counties of Humboldt, Pershing, Storey, Churchill, Lyon and Carson City. Washoe County is a long, narrow strip, between 30 and 50 miles wide, 190 miles long north and south, and encompasses a land area of 6,608 square miles.

Population density in the county is concentrated for the most part in the eight valleys adjacent to the Truckee River, in the southern one-third of the county. The principal city, Reno (the county seat), is situated in the southern part of the county and is the business and transportation center for northern and western Nevada. Washoe County has experienced rapid growth over the past several decades and has seen its population roughly double since 1980 (from approximately 190,000 in 1980 to approximately 360,000 in 2002). The Washoe County AQMD is the designated agency responsible for air quality management throughout the entire county with the exception of certain types of power plants, which are subject, under Nevada law, to the jurisdiction of NDEP.

Under the Clean Air Act (CAA) as amended in 1970, EPA established national ambient air quality standards (NAAQS) for certain pervasive air pollutants, such as photochemical oxidant, carbon monoxide, and particulate matter. The NAAQS represent concentration levels below which public health and welfare are protected. The 1970 Act also required States to adopt and submit State Implementation Plans (SIPs) to implement, maintain, and enforce the NAAQS. The original Nevada SIP was submitted and approved by EPA in 1972. SIP revisions are required from time-to-time to account for new or amended NAAQS or to meet other changed circumstances.

The CAA was significantly amended in 1977, and under the 1977 Amendments, EPA promulgated attainment status designations for all areas of the country with respect to the NAAQS. The Truckee Meadows portion of Washoe County (hydrographic area #87) was designated as a nonattainment area for the NAAQS for photochemical oxidant. See 43 FR 8962, at 9012 (March 3, 1978). The Clean Air Act provides for periodic review and revision of the NAAQS by EPA, and in 1979, EPA established a new NAAQS for ozone of 0.12 ppm, one-hour average, to replace the oxidant standard of 0.08 ppm. See 44 FR 8202 (February 8, 1979). Areas designated nonattainment for oxidant were considered to be nonattainment for ozone as well, but States could request redesignation to attainment if monitoring data showed that an area met the ozone NAAQS.

To satisfy the requirements for oxidant/ozone nonattainment areas under the 1977 Amended Act, Washoe County District Board of Health adopted five stationary source rules regulating emissions of volatile organic compounds (VOC): Section 040.070 (“Storage of Petroleum Products”), section 040.075 (“Gasoline Loading into Tank Trucks and Trailers”), section 040.080 (“Gasoline Unloading from Tank Trucks and Trailers into Storage Tanks”), section 040.085 (“Organic Solvents”), and section 040.090 (Cut-back Asphalt”). On July 24, 1979, the State of Nevada submitted these five rules to EPA as a revision to the Nevada SIP. EPA approved them as such on April 14, 1981 (46 FR 21758). Meanwhile, late in 1980, the State of Nevada requested that EPA redesignate Truckee Meadows as an attainment area for the then-new ozone NAAQS based on available ozone monitoring data, and in the following year, EPA approved the redesignation of Truckee Meadows from nonattainment for oxidant to attainment for the ozone NAAQS. See 46 FR 37896 (July 23, 1981).

Congress significantly amended the Clean Air Act again in 1990, and under the 1990 Act Amendments, because of an ozone episode in 1990, EPA designated all of Washoe County as a “marginal” ozone nonattainment area, effective January 6, 1992. See 56 FR 56694 (November 6, 1991). Under the CAA, as amended in 1990, States with marginal ozone nonattainment areas were required to submit SIP revisions providing for changes to the program for review of new major sources and major modifications (“new source review” or NSR), base year (1990) inventories of ozone precursor emissions and periodic inventory updates, rules requiring owners of larger stationary sources to submit annual emissions statements, and rules establishing procedures for determining conformity of certain types of projects to the SIP. See CAA sections 182(a) and 176(c).

NDEP has submitted various revisions to the Washoe County portion of the Nevada SIP over the past 15 years to meet these requirements. Specifically, NDEP submitted a SIP revision related to the Washoe County NSR program on April 7, 1994, SIP revisions related to ozone precursor emission inventories on November 13, 1992 (year 1990 inventory), January 19, 1996 (year 1993), April 14, 1999 (year 1996), February 5, 2002 (year 1999), and February 3, 2005 (year 2002), a SIP revision related to emission statements (Washoe County District Board of Health section 030.219) on November 13, 1992, and a SIP revision related to general and transportation conformity on July 31, 1995. 1

Improvements to the State's vehicle inspection and maintenance (I/M) program for the Truckee Meadows planning area to meet EPA's “basic” I/M performance standard, though adopted to meet CAA nonattainment planning requirements for carbon monoxide rather than ozone, also provide VOC emissions reductions. 2 NDEP submitted the upgraded I/M program on June 3, 1994 and submitted updated I/M-related statutes and rules on May 11, 2007. We expect to take action on the I/M submittals for Truckee Meadows in the near future in the context of taking action on NDEP's request for redesignation of Truckee Meadows to attainment for the carbon monoxide NAAQS.

NDEP, on behalf of Washoe County, submitted a maintenance plan for the 1-hour ozone NAAQS and a redesignation request to EPA on July 31, 1995. The Washoe County 1-hour ozone maintenance plan and redesignation request was revised and re-submitted by NDEP on April 2, 1997 but withdrawn from further consideration at the county's request on September 12, 1997 in the wake of EPA's revision of the ozone NAAQS during the summer of 1997.

In July 1997, subsequent to a periodic review of the ozone NAAQS, EPA established a new ozone NAAQS (0.08 ppm, eight-hour average) to replace the 1-hour ozone standard. See 62 FR 38856 (July 18, 1997). In 1998, we found that Washoe County was attaining the 1-hour ozone NAAQS based on 1994-1996 monitoring data and listed it as one of the areas in the country where the 1-hour ozone NAAQS no longer applied. See 63 FR 31014, at 31065 (June 5, 1998). In 2000, in response to continuing litigation over the 8-hour ozone NAAQS, we reinstated the 1-hour ozone NAAQS in those areas in which we had found the standard to no longer apply, such as Washoe County. See 65 FR 45182, at 45244 (July 20, 2000). In that 2000 action, we also reinstated Washoe County's classification as a “marginal” nonattainment area for the 1-hour ozone NAAQS, effective January 16, 2001, see 65 FR 45829 (July 25, 2000). In 2005, we made a second finding of attainment for Washoe County with respect to the 1-hour ozone NAAQS. See 70 FR 22803 (May 3, 2005). An attainment finding is but one of the criteria necessary to qualify for redesignation to “attainment.”

Meanwhile, in 2004, following years of delay associated with court challenges, EPA promulgated area designations for the new 8-hour ozone NAAQS. See 69 FR 23858 (April 30, 2004). Washoe County was designated as an “unclassifiable/attainment” area, effective June 15, 2004. See 69 FR 23858 at 23919-23920. In another EPA rule published on April 30, 2004 (69 FR 23951), which is referred to as the “Phase 1 8-Hour Ozone Implementation Rule” or “Phase 1 Rule,” EPA revoked the one-hour ozone NAAQS effective June 15, 2005 and established certain requirements to prevent backsliding in those areas that were designated as nonattainment for the 1-hour ozone standard (or that were “attainment” but subject to a maintenance plan) at the time of designation for the 8-hour ozone standard. EPA codified these requirements at 40 CFR 51.905.

Because Washoe County's designations as of June 15, 2004 (i.e., the date of designation for the 8-hour NAAQS) were “nonattainment” for the 1-hour ozone NAAQS and “unclassifiable/attainment” for 8-hour ozone NAAQS, a maintenance plan was required for the area under CAA section 110(a)(1) and the Phase 1 Rule. See 40 CFR 51.905(a)(3). States were required to submit CAA section 110(a)(1) ozone maintenance plans by June 15, 2007. WCAQMD prepared the Maintenance Plan for the Washoe County 8-Hour Ozone Attainment Area (April 2007) to meet the requirements of section 110(a)(1) and EPA's Phase 1 Rule. In today's action, we are approving the Washoe County Ozone Maintenance Plan as a revision to the Washoe County portion of the Nevada SIP.

Generally, we will determine whether an area's air quality is meeting the NAAQS based upon data gathered at established state and local air monitoring stations (SLAMS) and national air monitoring sites (NAMS) and entered into the Air Quality System (AQS) database. Data entered into AQS has been determined to meet Federal monitoring requirements (see 40 CFR 50.6; 40 CFR part 50, appendix J; 40 CFR part 53; 40 CFR part 58, appendices A and B) and may be used to determine the attainment status of areas. Also, we also take into account data from other air monitoring stations, such as Special Purpose Monitors (SPMs), if the data is collected using a Federal reference method or Federal equivalent method, unless the air monitoring agency demonstrates that the data came from a particular period during which EPA requirements concerning quality assurance, methods, or siting criteria were not met in practice. See 71 FR 61236, at 61302 (October 17, 2006) and 40 CFR 58.20. All data are reviewed to determine the area's air quality status in accordance with 40 CFR part 50, appendix I.

Washoe County AQMD measures ambient ozone concentration at six monitoring sites located in southern Washoe County, including Lemmon Valley, downtown Reno, Sparks, south Reno, Toll Road (Geiger Grade), and Incline Village. All of Washoe County AQMD's ozone monitoring sites are NAMS or SLAMS except for Incline Village, which is a SPM for ozone.

The current ozone NAAQS is met at an ambient air quality monitoring site when the three-year average of the annual fourth-highest daily maximum 8-hour ozone concentration (also referred to as the “design value”) is less than or equal to 0.08 ppm, and the standard is met within an air quality planning area when the standard is met at all of the monitoring stations. A review of the data gathered at the various ozone monitoring sites in Washoe County and entered into AQS confirms that Washoe County is in attainment of the 8-hour ozone NAAQS. Since 1999, the highest design value at any of the ozone monitoring sites is 0.075 ppm, a value calculated for the Sparks monitor over the 2001-2003 period. For the purposes of comparison, due to rounding conventions, no design values less than 0.085 ppm violate the ozone NAAQS. More recently, the highest design value for both 2003-2005 and 2004-2006 periods is 0.071 ppm, the value calculated for the downtown Reno, south Reno, and Sparks monitoring sites.

As noted above, EPA promulgated the 8-hour ozone NAAQS in 1997 and designated and classified areas for this standard in 2004. In 2004, we also published the Phase 1 Ozone Implementation Rule. Code of Federal Regulations, title 40, part 51, § 51.905(a)(3) and (4), established in that rulemaking, set forth requirements for anti-backsliding purposes for areas designated unclassifiable/attainment for the 8-hour standard. These provisions required States with such areas to submit 10-year maintenance plans under section 110(a)(1) of the CAA if these areas were also nonattainment areas (or were attainment areas subject to a CAA section 175A maintenance plan) under the 1-hour ozone standard. 3 Such plans are to be submitted as revisions to SIPs. Washoe County AQMD prepared the Washoe County Ozone Maintenance Plan in response to these requirements.

Under section 110 of the Act and EPA regulations (at 40 CFR part 51, subpart F), each State must provide reasonable notice and public hearing prior to adoption of SIPs and SIP revisions for subsequent submittal to EPA.

On March 23, April 5, and April 20, 2007, the District Board of Health published a notice in the Reno Gazette-Journal, a newspaper of general circulation in the Reno area, of a public hearing to consider the Washoe County Ozone Maintenance Plan. A public hearing was held on April 26, 2007 at District Health Department offices in Reno. On April 26, 2007, the District Board of Health adopted the maintenance plan and forwarded the plan to NDEP. On May 30, 2007, in accordance with Nevada law, the Administrator of NDEP submitted the Ozone Maintenance Plan to EPA. NDEP's May 30, 2007 SIP submittal package includes evidence of public notice, public hearing, and District Board of Health adoption as described above. No public comments were received on the draft maintenance plan. Based on review of these materials, we find that NDEP and the District Board of Health have met the procedural requirements of CAA section 110 and 40 CFR part 51, subpart F.

The 8-hour ozone 110(a)(1) maintenance plan must provide for continued maintenance of the 8-hour ozone NAAQS in the area for 10 years from the effective date of the area's designation as unclassifiable/attainment for the 8-hour ozone NAAQS. At a minimum, the maintenance plan for such areas must include the five following components: Attainment inventory, maintenance demonstration, ambient air quality monitoring, verification of continued attainment, and contingency plan. As explained below, we find that the Washoe County Ozone Maintenance Plan includes all five components, that each component is acceptable, and that the overall plan provides for continued maintenance of the 8-hour ozone NAAQS in Washoe County through 2014 (i.e., 10 years beyond 2004, the year of the county's designation for the 8-hour ozone NAAQS).

The attainment inventory should be based on actual “typical summer day” emissions of VOC and NO X . EPA's Phase 1 8-Hour Ozone Implementation Rule provides that the 10-year maintenance period begins as of the effective date of designation for the 8-hour ozone standard for the area. For purposes of an attainment emissions inventory, the State may use one of any of the three years on which the 8-hour attainment designation was based (i.e., 2001, 2002, and 2003). The inventory should be consistent with EPA's most recent emissions inventory methods, models, and factors and should be based on the latest planning assumptions regarding population, employment, and motor vehicle activity.

For the Washoe County Ozone Maintenance Plan, Washoe County AQMD prepared an attainment inventory of “typical summer day” VOC and NO X emissions for year 2002. Washoe County AQMD's attainment inventory is comprehensive and includes essentially all point, area, mobile and biogenic sources within the county. Table 1 below summarizes the plan's attainment inventory, as well as the plan's inventories for projected VOC and NO X emissions for years 2010 and 2014.

On February 3, 2005, NDEP submitted Washoe County AQMD's emissions inventories of VOC and NO X for year 2002 as the latest in a series of periodic inventory updates that the county has prepared since 1990 to meet 1-hour ozone planning requirements. To develop the attainment inventory for the Washoe County Ozone Maintenance Plan, Washoe County AQMD relied upon the previously-submitted inventory information for year 2002 for point and area sources but updated certain source categories, such as nonroad equipment and on-road motor vehicles, for which new EPA emissions estimation models had become available.

As a general matter, for the point source portion of the attainment inventory, Washoe County AQMD used data collected from permitted sources during the annual permit renewal process or from emission statements. For area sources, Washoe County AQMD used EPA emission factor and methods or material balance calculations, except for structural and automobile fires for which Washoe County AQMD used emissions factors and methods developed by the California Air Resources Board. Aircraft and railroad emissions were estimated using EPA emissions factors and methods and local activity data provided by Washoe County Airport Authority and Union Pacific Railroad, respectively. Biogenic source emissions were determined using EPA's Biogenic Emissions Inventory System, version 2.3 (BEIS2.3). Documentation for the emissions developed for these various source categories is provided in Washoe County AQMD's Washoe County, Nevada Ozone Non-Attainment Area, 2002 Periodic Emissions Inventory of Ozone Precursors (May 2004) , and related appendices A, B, and C, submitted by NDEP on February 3, 2005.

As noted above, for nonroad vehicles and on-road motor vehicles, Washoe County AQMD re-calculated the emissions that had previously been calculated for 2002 to reflect updated EPA factors and models. For nonroad vehicles, Washoe County AQMD re-calculated emissions for 2002 using the EPA model NONROAD2005, and for on-road motor vehicles, Washoe County AQMD re-calculated emissions using the EPA model MOBILE6.2.03. The on-road vehicle category incorporated the most recent planning assumptions for the transportation network including vehicle miles traveled and vehicle speeds. These planning assumptions were consistent with those used by the metropolitan planning organization (MPO), which, in Washoe County, is the Regional Transportation Commission. Documentation for the emissions estimates for nonroad and on-road vehicles is provided in appendices A, B, and C of the Washoe County Ozone Maintenance Plan.

As shown in table 1, above, biogenic sources represent the largest source of VOC emissions during a typical summer day in Washoe County at approximately 56 percent of the inventory. Among the anthropogenic source categories, on-road and nonroad mobile sources contribute the most to the overall VOC inventory at 17 and 16 percent, respectively. With respect to NO X emissions, the largest contributing sources are on-road and nonroad mobile sources at 40 percent and 20 percent, respectively.

Based on our review of the documentation submitted with the 2002 periodic inventory and the Washoe County Ozone Maintenance Plan, we conclude that the attainment inventory has been developed for the appropriate season of an acceptable attainment year, is comprehensive and based on appropriate factors and methods, and thus is acceptable for the purposes of a section 110(a)(1) ozone maintenance plan.

The key element of a section 110(a)(1) ozone maintenance plan is a demonstration of how the area will remain in compliance with the 8-hour ozone standard for the 10-year period following the effective date of designation as unclassifiable/attainment. The end projection year is 10 years from the effective date of the attainment designation, which for Washoe County was June 15, 2004. Therefore, this plan must demonstrate attainment through 2014.

The typical method that areas have used in the past to demonstrate that an area will maintain the 1-hour ozone standard has been to identify the level of ozone precursor emissions in the area which is sufficient to attain the NAAQS and to show that future emissions of ozone precursors will not exceed the attainment levels. To perform this analysis, for the 8-hour maintenance plan, the State needs to develop emission inventories for the attainment year and for the projection year. Also, because the plan must demonstrate maintenance throughout the applicable 10-year period, not just in the projection year, the State should develop an emission inventory for an interim year between the attainment inventory year and the projection inventory year to show a trend analysis for maintenance of the standard.

For its maintenance demonstration, the Washoe County Ozone Maintenance Plan includes emissions inventories of ozone precursors in an interim year (2010) and the projection year (2014). To develop the emissions projections for these two future years, Washoe County AQMD used several different methods to project data from year 2002 to the years 2010 and 2014. For most point and area sources, Washoe County AQMD used Washoe County's 2010 and 2014 population and employment forecasts adopted by the Truckee Meadows Regional Planning Commission (which are consistent with those used by the local MPO) to project emissions into the future. Population forecasts were also used to project buffer zone source emissions and locomotive emissions. Emissions from fires and biogenic sources were assumed to remain constant over the 2002-2014 period. For nonroad vehicles and on-road vehicles, Washoe County AQMD used EPA models, NONROAD2005 and MOBILE6.2.03, respectively to project emissions for 2010 and 2014 using the latest vehicle activity projections used by the local MPO. Aircraft emissions projections were based on aviation activity forecasts provided by the local airport authority. We find that the methods and assumptions used by Washoe County AQMD to project emissions to 2010 and 2104 are acceptable.

Table 1, above, summarizes the emissions projections for 2010 and 2014 developed by Washoe County AQMD for the Washoe County Ozone Maintenance Plan and compares those estimates with the corresponding estimates for the attainment year (2002). Washoe County AQMD concludes in the Ozone Maintenance Plan, based on the comparison of emissions in 2014 with those in 2002, that the 8-hour ozone NAAQS will be maintained through the 10-year maintenance period. We agree with Washoe County AQMD's conclusion for the reasons given below.

As shown in table 1 above, decreases in VOC emissions from nonroad and on-road vehicle categories (relative to 2002) are expected to more-than-offset increases in the other source categories. With respect to NO X , overall emissions are expected to increase through 2010 but then to decrease over the next four years as the benefits from new EPA emissions and fuels standards for diesel vehicles begin to take effect. We note, however, that the NO X emissions increase in 2010 is less in absolute terms than the VOC emissions decrease in that same year. Thus, based on the inventory projections in the Washoe County Ozone Maintenance Plan, we believe that maximum daily 8-hour ozone concentrations in Washoe County through 2010 will most likely remain similar to those monitored in the 2001-2003 period (during which the area was in attainment of the standard) and then drop slightly afterwards in rough proportion to the decrease in ozone precursor emissions predicted from 2010 through 2014. As such, we find that the Washoe County Ozone Maintenance Plan demonstrates continued attainment of the 8-hour ozone standard through 2014.

The State should continue to operate air quality monitors in accordance with 40 CFR part 58 to verify maintenance of the 8-hour ozone standard in the area. In 2006, Washoe County AQMD operated six ozone monitoring stations in southern Washoe County. In the maintenance plan, Washoe County AQMD commits to the continued operation of an appropriate ozone monitoring network in accordance with 40 CFR part 58 to verify the attainment status of the area. See page 9 of the Ozone Maintenance Plan. This is acceptable.

A section 110(a)(1) ozone maintenance plan should indicate how the State will track the progress of the maintenance plan. This is necessary due to the fact that emissions projections made for the maintenance demonstration depend on assumptions of point, area and mobile source activity and turn-over rates. One option for tracking the progress of the maintenance demonstration would be for the State to periodically update the emissions inventory.

To track the progress of the Washoe County Ozone Maintenance Plan, Washoe County AQMD has committed to prepare, and submit to EPA, comprehensive periodic ozone emissions inventories on a triennial basis through at least 2014. The plan's stated purpose for the triennial inventory updates is to screen for significant increases in actual ozone precursor emissions. See page 10 of the Ozone Maintenance Plan. This is acceptable.

EPA's Phase 1 8-Hour Ozone Implementation Rule requires section 110(a)(1) maintenance plans to include contingency provisions to promptly correct any violation of the ozone NAAQS that occurs. Generally, contingency plans should clearly identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific timeline for action by the State. Also, the State should identify specific indicators or triggers, which will be used to determine when the contingency measures need to be implemented.

The Washoe County Ozone Maintenance Plan includes a contingency plan that establishes a triggering mechanism, and identifies specific measures to be adopted, a schedule and procedure for adoption and implementation, and a specific timeline for action by the District Board of Health. The triggering mechanism is a confirmed violation of the 8-hour ozone NAAQS at one of the air monitoring stations operated by Washoe County AQMD.

The Washoe County Ozone Maintenance Plan identifies a list of potential contingency measures that are to be considered by the District Board of Health for implementation in the event that the triggering event occurs. The identified measures focus on the two of the largest anthropogenic source categories of ozone precursor emissions in Washoe County: On-road motor vehicles and nonroad gasoline-powered vehicles. With respect to on-road motor vehicles, the potential contingency measures include: (1) Increase the I/M waiver repair rate, (2) establish/enhance trip reduction programs, and (3) establish an early vehicle retirement program. With respect to nonroad gasoline engines, the potential contingency measures include: (1) Portable gas container emission controls, (2) construction fleet modernization, and (3) establish a fund program to electrify existing gasoline lawn and garden equipment. See page 12 of the Ozone Maintenance Plan. The Ozone Maintenance Plan indicates that the list of potential measures will be reviewed and updated at least once every three years in coordination with the periodic ozone emissions inventory update process.

With regard to adoption and implementation of measures, the contingency plan includes a commitment by Washoe County AQMD to make recommendations to the Washoe County District Board of Health at their next regularly scheduled meeting, but no later than 45 days after the trigger has been reached. The contingency plan then indicates that the District Board of Health's contingency measure adoption and implementation schedule shall be as expeditious as practicable, but not longer than 24 months.

Given that the contingency plan included in the Washoe County Ozone Maintenance Plan establishes a triggering mechanism, and identifies specific measures to be adopted, a schedule and procedure for adoption and implementation, and a specific timeline for action, we find that the Washoe County Ozone Maintenance Plan includes contingency provisions to promptly correct any violation of the 8-hour ozone NAAQS that occurs in Washoe County and thus is acceptable.

Based on the review presented above of the various elements of the submitted plan, we are approving the Washoe County Ozone Maintenance Plan as a revision to the Washoe County portion of the Nevada SIP. In so doing, we find that the Washoe County Ozone Maintenance Plan, adopted on April 26, 2007 by the Washoe County District Board of Health and submitted to EPA by NDEP on May 30, 2007, satisfies the requirements of CAA section 110(a)(1) and EPA's phase 1 rule implementing the 8-hour ozone standard.

Under section 110(k) of the Clean Air Act, EPA is approving a revision to the Washoe County portion of the Nevada SIP that was submitted to EPA on May 30, 2007 and that consists of the Maintenance Plan for the Washoe County 8-Hour Ozone Attainment Area (April 2007) (“Washoe County Ozone Maintenance Plan”). As described in more detail above, we are approving the Washoe County Ozone Maintenance Plan because we find that it provides for continued attainment of the 8-hour ozone standard in Washoe County through the year 2014 and thereby satisfies the related requirements under section 110(a)(1) of the Clean Air Act and EPA's phase 1 rule implementing the 8-hour ozone NAAQS. Our approval of the Washoe County Ozone Maintenance Plan as a revision to the Nevada SIP makes the commitments included therein, such as those related to ambient air quality monitoring, verification of continued attainment, and the contingency plan, federally enforceable.

EPA is publishing this rule without prior proposal because we view this as a non-controversial action and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on March 18, 2008 without further notice unless we receive adverse comment by February 19, 2008 . If we receive adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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 as meeting Federal requirements and 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). 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 implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. 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 CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 18, 2008 . Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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 7, 2007, the Arizona Department of Environmental Quality (“ADEQ” or “State”) submitted to EPA Region IX its Final Arizona State Implementation Plan Revision, San Manuel Sulfur Dioxide Nonattainment Area, March 2007 and its request for redesignation to attainment (“San Manuel SO 2 Maintenance Plan” or “submittal”). The submittal summarizes the progress the State has made in attaining the 24-hour and annual average sulfur dioxide (SO 2 ) national ambient air quality standards (NAAQS) in the San Manuel nonattainment area in Pima and Pinal Counties, Arizona (“San Manuel area”) and includes a plan to assure continued attainment of the SO 2 NAAQS for at least the next 10 years. The State's June 2007 submittal also requested the withdrawal of the June 2002 Final San Manuel Sulfur Dioxide Nonattainment Area State Implementation and Maintenance Plan. The June 2007 submittal updated the SIP to account for the closure of the dominant source of SO 2 emissions, the BHP Billiton copper smelter. The March 2007 SIP revision contains current information and analyses which supercede the obsolete information in the June 2002 SIP.

In today's direct final action, we are approving ADEQ's June 7, 2007 submittal as a revision to the Arizona SIP and redesignating the San Manuel area from nonattainment to attainment for the SO 2 NAAQS because we find that the San Manuel SO 2 Maintenance Plan meets the requirements for maintenance plans under section 175A of the Clean Air Act (CAA) and that the San Manuel area qualifies for redesignation under CAA section 107(d)(3)(E).

The following section discusses the NAAQS for SO 2 , CAA requirements for state implementation plans, SO 2 planning in Arizona generally and in the San Manuel area more specifically, and sources of emissions in the San Manuel 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 1970s, soon after the CAA Amendments of 1970 were passed, Arizona began developing air quality regulations that applied to all Arizona primary copper smelters, including the one operating at that time in San Manuel. 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 limits 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 San Manuel) because they lacked a strategy for addressing fugitive sources of SO 2 . 1

On November 1, 2004, EPA approved several revisions to the SO 2 SIP, including fugitive emissions standards, site-specific requirements, and compliance and monitoring for existing primary copper smelters. See 69 FR 63321. In that same notice, EPA promulgated a limited approval/limited disapproval of Arizona Administrative Code (AAC) 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, effective June 12, 2006. See 71 FR 18624.

Initially, the air quality planning area we refer to as the San Manuel SO 2 nonattainment area comprised all of Pima and Pinal Counties (43 FR 8969; March 3, 1978) but at the request of the State of Arizona, the boundaries were subsequently reduced to eleven townships around the primary copper smelter located near San Manuel (44 FR 21261, April 10, 1979). In addition, four adjacent townships were designated as unclassified. 2 All but one of the townships that define the nonattainment area are located in southeastern Pinal County, with the remaining southernmost township located in neighboring Pima County. The current boundaries of the nonattainment and unclassified areas are codified at 40 CFR 81.303 and are defined as follows: “Does Not Meet Primary Standards”: T8S, R16E; T8S, R17E; T8S, R18E; T9S, R15E; T9S, R16E; T9S, R17E; T9S, R18E; T10S, R15E; T10S, R16E; T10S, R17E; T11S, R16E, and “Cannot Be Classified”: T10S, R18E; T11S, R17E; T12S, R16E; T12S, R17E.

In June of 2002, ADEQ submitted the Final San Manuel Sulfur Dioxide Nonattainment Area State Implementation and Maintenance Plan and redesignation request. Since then, the San Manuel copper smelter, the dominant source of emissions in the area, has permanently ceased operation. In January 2005, BHP Copper Inc. (BHP Billiton) notified ADEQ that the company intended to permanently cease operating the San Manuel smelter. As indicated in Appendix B of the current SIP submittal, in March 2005, ADEQ terminated the permit for the facility. The smelter stacks were dismantled in January 2007. The smelting facility cannot reopen without submitting New Source Review (NSR) and Title V (Part 70) permit applications to ADEQ.

Emissions inventories for the San Manuel Nonattainment Area demonstrate that, although there were other sources of SO 2 emissions, the primary source of SO 2 emissions in the San Manuel area while it was operating was the San Manuel smelter, which comprised more than 99.5 percent of total SO 2 emissions in the nonattainment area. Data show that no other point, area, or mobile sources have contributed in the past or currently contribute to the same levels of SO 2 emissions in the San Manuel Nonattainment Area as those attributed to the smelter. Figure 4.1 on page 30 of the SIP illustrates sulfur dioxide emissions levels for the San Manuel smelter from 1972 through 2005. Implementation of new emissions control technologies at the smelter in the mid 1970s and again in the late 1980s are clearly reflected in the resulting emissions reductions for these periods. Closure of the smelter reduced emissions by more than 10,000 tons of SO 2 per year.

Arizona has requested that we redesignate the San Manuel SO 2 nonattainment area to attainment. Any redesignation from nonattainment to attainment requires EPA to determine whether the requirements of CAA 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 San Manuel area, we relied upon the Clean Air Act, 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 began ambient SO 2 monitoring in the San Manuel area as early as 1969.  3 Over time, an extensive monitoring network was developed with more than eighteen stationary and mobile monitoring sites. This ambient SO 2 network, comprised of EPA, state, and facility monitors, was developed as the result of extensive efforts to identify maximum ambient impact areas using diffusion modeling, monitored atmospheric dispersion parameters, citizen observations, and ambient SO 2 concentrations.

Further refinement of the monitoring network was required by the adoption of the MPR rules that established stack emissions limits for the smelter in 1979 based on permanent controls. Placement of additional monitors was accomplished with EPA consultation to further evaluate ambient impacts. Following implementation of continuous emissions control technology and compliance with emissions limits as defined in AAC R18-2-715(F) at the San Manuel smelter, the number of permanent monitors was gradually reduced to a network of four: LDS Church, Townsite, Dorm Site, and Hospital. These were all high impact ambient monitor sites found to be representative of air quality for the area. The Dorm Site and Hospital monitors were primarily fugitive impact sites. The Townsite and the LDS Church site were primarily stack impact sites. The Townsite monitor was the “limiting site” for the original MPR analysis.  4 These monitoring site decisions were made by ADEQ in accordance with EPA guidance.

Following the shutdown of smelting operations in 1999, the facility-operated Townsite, Dorm Site, and Hospital monitors were closed. ADEQ continues to operate a monitor at the LDS Church site. Table 1 summarizes ambient SO 2 air quality monitoring from 1997 to 2005.

After reviewing the historic ambient SO 2 monitoring data, EPA concludes the data was collected in accordance with EPA guidelines. The monitoring sites were found to be representative of air quality for the area. As required for redesignation, the nonattainment area has recorded more than eight current, consecutive quarters of quality-assured monitoring data that is free of NAAQS violations.

ADEQ had included monitoring data in Chapter 3 of the SIP. ADEQ's review of historic ambient SO 2 monitoring data in the San Manuel area collected by ADHS, BAQC, and ADEQ confirms that the primary SO 2 NAAQS has not been violated since 1979 and the secondary SO 2 NAAQS has not been violated since 1985.

In the San Manuel SIP submittal, ADEQ proposes to close the San Manuel SO 2 monitoring site effective December 31, 2007. Federal regulations at 40 CFR 58.14 allows sites to be closed under specific circumstances. ADEQ believes that the closure of the San Manuel SO 2 site meets these criteria. Specifically, the option under 40 CFR 58.14(c)(3) allows for discontinuation of a monitor within an attainment, nonattainment, or maintenance area, “* * * provided the monitor has not measured violations of the applicable NAAQS in the previous five years, and the approved SIP provides for a specific, reproducible approach to representing the air quality of the affected county in the absence of actual monitoring data.” This position is supported with the information provided below.

Monitoring data for 2002 through 2006 indicate that maximum ambient concentrations were three percent or less of the NAAQS for the 3-hour standard; five percent or less of the NAAQS for the 24-hour standard; and less than seven percent of the NAAQS for the annual standard. Following the shutdown of the San Manuel ambient SO 2 monitor, ADEQ will continue to demonstrate attainment and maintenance of the SO 2 NAAQS through updates to the emissions inventory as described in the San Manuel SO 2 Maintenance Plan, March 2007. Analyses contained in the SIP demonstrate that, although there were other sources of SO 2 emissions, the San Manuel copper smelter, which permanently closed in 2005, was the primary emissions source in the nonattainment area and comprised more than 99.5 percent of total emissions while it was operating. The more than 99 percent emissions reduction due to the closure of the smelter corresponds to a greater than 92 percent reduction in 3-hour average and 24-hour average ambient SO 2 concentrations.

With the permanent closure of the San Manuel smelter, no major point sources exist in the nonattainment area. Sulfur dioxide emissions in 2017 are projected to be less than 0.5 percent of 1997 and 1998 total nonattainment area emissions, a period in which the San Manuel smelter was operating full time.

Arizona does not anticipate any substantial increase in existing point source emissions between now and 2017 for the nonattainment area. Should any growth occur due to construction of additional SO 2 point sources, the ADEQ, Pinal County Air Quality Control District (PCAQCD), and Pima County Department of Environmental Quality (PDEQ) permit programs limit all emissions as part of construction of new point sources or upgrading of existing sources. ADEQ commits to re-establish an appropriate network before any major source of SO 2 begins operations in the San Manuel planning area.

Maintenance of the SO 2 NAAQS in San Manuel area will be tracked through updates to the emissions inventory and permit applications received for SO 2 emitting sources.

Therefore, ADEQ has demonstrated, and we concur, that the closure of the San Manuel SO 2 site meets the criteria set forth in 40 CFR 58.14. 5 We also conclude that the area has attained the SO 2 NAAQS.

Under CAA section 107(d)(3)(E)(ii), the SIP for the San Manuel 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 San Manuel 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. As shown in Table 1, as required for redesignation, the nonattainment area has recorded more than eight current, consecutive quarters of quality-assured, violation-free data. Monitoring data for 1997 through 1999, while the San Manuel smelter was still operating, indicate that maximum ambient concentrations were less than 55 percent of the NAAQS for the 3-hour standard, less than 59 percent of the NAAQS for the 24-hour standard, and less than 33 percent of the NAAQS for the annual standard.

Closure of the smelter in 1999 further reduced emissions and resultant ambient SO 2 concentrations. Monitoring data for 2004 through 2005 indicate that maximum ambient concentrations were two percent of the NAAQS for the 3-hour standard and less than three percent for the 24-hour standard; and less than seven percent of the NAAQS for the annual standard. Monitoring network data for the period 1997 through 2005 are presented in Table 1. Closure of the smelter has resulted in permanent and enforceable emissions reductions, as required by the CAA.

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 San Manuel 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 San Manuel 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 San Manuel 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 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 A.A.C. R9-3-315, a predecessor to the State's current smelter rules codified at A.A.C. R18-2-715. See 48 FR 1717 (January 14, 1983). This rule limited stack emissions from primary copper smelters, including the smelter which was located in the San Manuel 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). 6 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 San Manuel 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. 7 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. 8 We have determined that the maintenance demonstration for San Manuel 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 or reconstructed major stationary sources or major modifications to existing major stationary sources to undergo preconstruction review and to apply best available control technology. In addition, sources are required to review air quality and other impacts, which includes analysis of PSD increment consumption and undertake preconstruction modeling ADEQ has an EPA-approved PSD permitting program AAC R18-2-406 for all criteria pollutants except respirable particulate matter (PM10). See 48 FR 19878 (May 3, 1983). The federal PSD program for PM10 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 San Manuel area once the area is redesignated to attainment. 9

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 San Manuel portion of the Arizona SIP meets these requirements.

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 San Manuel 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 San Manuel 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 San Manuel 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. 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. 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.

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. ADEQ has made a commitment to submit a subsequent maintenance plan to EPA eight years into the initial 10-year maintenance period (see page 15 of the submitted plan) and thereby satisfies the requirements of Section 175A(b).

As required in the Calcagni memo as one of the core provisions necessary to ensure maintenance of the relevant NAAQS in an area seeking redesignation from nonattainment to attainment, the San Manuel Maintenance Plan includes an emissions inventory for point sources, area sources, and mobile sources for 1997 through 2005 as well as a projection of emissions to 2017.

Based on our review of the submitted plan, we conclude that the current and projected emissions inventories are based on reasonable methods and assumptions and are 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. 10 When ADEQ first submitted a maintenance plan for the San Manuel area in 2002, the plan contained a modeling exercise. In January 2005, BHP Copper Inc. (BHP Billiton) notified ADEQ of the company's intent to permanently cease operations and remove all equipment and buildings at their San Manuel smelting facility. In March 2005, ADEQ terminated the permit for the facility. Closure of the smelter reduced SO 2 emissions in the San Manuel area by more than 10,000 tons per year. Based on monitored data, the area had already attained the SO 2 ambient air quality standards. Annual ambient concentrations measured from 1997 through 1999 were less than 42 percent of the NAAQS and maximum 24-hour concentrations were less than 59 percent of the NAAQS. 11 ADEQ subsequently withdrew the 2002 maintenance plan, but included the modeling exercise in Appendix A of the current submittal. Since the modeling exercise demonstrated that the area could maintain the standard while the smelter was operating, we concur with the state that maintenance of the standard will continue since the smelter is no longer operating.

In addition, the projected inventory from the San Manuel SO 2 Maintenance Plan shows that emissions in the area are estimated to remain well below attainment period levels in 2017, the 10th year after redesignation. Although there is slight growth in total emissions from 2005 to 2017, projected 2017 emissions are 0.3 percent of 1998 emissions levels, due largely to the cessation of smelter operations. Therefore, we conclude that the San Manuel SO 2 maintenance plan contains an adequate maintenance demonstration.

Once an area has been redesignated, in accordance with 40 CFR Part 58, the State is required to continue operation of an appropriate air quality monitoring network to verify the attainment status of the area. The maintenance plan should contain provisions for continued operation of air quality monitors that will provide such verification.

EPA allows a state to discontinue a monitor within a nonattainment or maintenance area provided the monitor has not measured violations of the applicable NAAQS in the previous five years, and the approved SIP provides for a specific, reproducible approach to representing the air quality of the affected area in the absence of actual monitoring data. Because the primary source of SO 2 emissions in the nonattainment area permanently closed and recorded air quality data for 2002 through 2005 indicate that maximum ambient concentrations are less than seven percent of the primary and secondary NAAQS, ADEQ intends to discontinue monitoring at this site.

EPA concurs with ADEQ's decision to discontinue SO 2 monitoring in the San Manuel area. Since the main source of SO 2 emissions has been permanently shut down and dismantled there is no longer any reason to monitor for this pollutant at this time. Section 7.2 of the SIP states that ADEQ commits to reestablishing an appropriate SO 2 monitoring network in the San Manuel area before any future major source of SO 2 begins operations in the San Manuel planning area.

ADEQ intends to track the progress of the San Manuel 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. ADEQ anticipates no relaxation of any implemented control measures used to attain and maintain the ambient air quality standards.

Maintenance of the SO 2 NAAQS in San Manuel area will be tracked through updates to the emissions inventory and permit applications received from SO 2 emitting sources. The projected inventory from the San Manuel SO 2 Maintenance Plan shows that emissions in the area are estimated to remain well below attainment period levels in 2017, the 10th year after redesignation. Although there is slight growth in total emissions from 2005 to 2017, projected 2017 emissions are 0.3 percent of 1998 emissions levels, due largely to the cessation of smelter operations. The PCAQCD and PDEQ have authority for sources under their jurisdiction.

Considered together, the submitted plan and relevant state and local EPA-approved regulations adequately provide for verification of continued attainment of the SO 2 NAAQS in the San Manuel 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.

The only threat to the SO 2 NAAQS in this planning area is from new sources. Because the primary source of SO 2 emissions in the San Manuel area is permanently closed, measures to ensure continued attainment of the SO 2 NAAQS are PSD permitting requirements. Any new source proposing to operate in the San Manuel area is subject to the provisions of A.A.C. R18-2-403, “Permits for Sources Located in Nonattainment Areas,” and those in A.A.C. R18-2-406, “Permit Requirements for Sources Located in Attainment and Unclassified Areas.” With our redesignation of San Manuel, they will only be subject to A.A.C. R18-2-406. These programs address NSR and PSD requirements applicable to SO 2 sources. Under the PSD program, new major stationary or major modifications to existing major sources are required to undergo preconstruction review before the facility is constructed, modified, or reconstructed, and to apply Best Available Control Technology (BACT). If a new source is not a major source, it may still be required to obtain a permit under minor source permitting rules at AAC R18-2-Article 3. 12

Upon review of the contingency plan summarized above, we find that ADEQ has established a workable contingency plan for the San Manuel area. Since ADEQ anticipates no relaxation of any implemented control measures, and commits to submit to us any changes to rules or emission limits applicable to SO 2 sources, as well as committing to maintain the necessary resources to promptly correct any violations of the SO 2 NAAQS that occur after the redesignation of the San Manuel area to attainment, the State 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 15 of the submitted plan) and thereby satisfies CAA section 175A(b).

ADEQ's Final State Implementation Plan Revision, San Manuel Sulfur Dioxide Nonattainment Area , March 2007 adequately addresses the five basic topics that maintenance 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 San Manuel SO 2 Maintenance Plan as a revision to the Arizona SIP and thereby satisfy the related redesignation criteria of CAA section 107(d)(3)(E)(iv).

As authorized under section 110(k)(3) of the Act, EPA is approving the Final State Implementation Plan Revision, San Manuel Sulfur Dioxide Nonattainment Area, March, 2007 as submitted by ADEQ on June 7, 2007, as a revision to the Arizona SIP. 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 San Manuel 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 San Manuel area has attained the SO 2 NAAQS; (2) Arizona has a fully approved SIP for the San Manuel area; (3) the improvements in air quality in the San Manuel area are due to permanent and enforceable reductions in emissions resulting from the permanent closure of the smelter and from implementation of EPA's Title V permit conditions; (4) Arizona has met all of the nonattainment area requirements applicable to the San Manuel area; and (5) the State's submitted maintenance plan meets all relevant CAA requirements and is being approved in this notice.

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 of the San Manuel, AZ SO 2 area. If we receive adverse comments by February 19, 2008, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on March 18, 2008. This will approve the redesignation request and maintenance plan submitted by Arizona on June 7, 2007.

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 state law as meeting Federal requirements and 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). 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 rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

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 18, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Submitting Comments: As the public was provided an opportunity to comment on the substance of the rule during the comment period prior to the publication of the September 19, 2007 final rule, and as the substance of the rule is not changed by this interim final rule with comment period, we are accepting comments only to the extent that they pertain to the applicability of the new authority for the rule. You can assist us by referencing the file code CMS-2278-IFC3.

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following Web site as soon as possible after they have been received: http://www.cms.hhs.gov/eRulemaking . Click on the link “Electronic Comments on CMS Regulations” on that Web site to view public comments.

Comments received timely will be available for public inspection as they are received, generally beginning approximately three weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.

In the June 29, 2007 Federal Register (72 FR 35673), we published the proposed rule entitled, “Establishment of Revisit User Fee Program for Medicare Survey and Certification Activities” and provided for a 60-day comment period. In the September 19, 2007 Federal Register (72 FR 53628) we published the Revisit User Fee Program final rule. That final rule set forth final requirements and a final fee schedule for providers and suppliers who require a revisit survey as a result of deficiencies cited during an initial certification, recertification, or substantiated complaint survey.

The Centers for Medicare & Medicaid Services (CMS) has in place an outcome-oriented survey process that is designed to ensure that existing Medicare-certified providers and suppliers or providers and suppliers seeking initial Medicare certification, meet statutory and regulatory requirements, conditions of participation, or conditions for coverage. These health and safety requirements apply to the environments of care and the delivery of services to residents or patients served by these facilities and agencies. The Secretary of the Department of Health and Human Services (HHS) has designated CMS to enforce the conditions of participation/coverage and other requirements of the Medicare program. The revisit user fee will be assessed for revisits conducted in order to determine whether deficiencies cited as a result of failing to satisfy federal quality of care requirements have been corrected.

Pursuant to the requirements of the Continuing Appropriations Resolution budget bill for fiscal year (FY) 2007, the Secretary directed CMS to implement the revisit user fees for FY 2007 for certain providers and suppliers for which a revisit was required to confirm that previously-identified failures to meet federal quality of care requirements had been remedied. The fees recover the costs associated with the Medicare Survey and Certification program's revisit surveys. The primary purpose for implementing the revisit user fees is to ensure the continuance of CMS Survey and Certification quality assurance activities that improve patient care and safety. The fees became effective upon publication September 19, 2007, when the final rule was published.

The current Continuing Resolution, Public Law 110-137, amends Public Law 110-16 Division B by striking the date specified in section 106(3) and inserting `December 21, 2007'. The current Continuing Resolution authorizes HHS to continue to impose revisit user fees until December 21, 2007, as follows:

(3) December 21, 2007.

As directed by the Secretary, in the September 19, 2007 Federal Register (72 FR 53628), we established the revisit user fee program for revisit surveys. We put forth in regulation the relevant definitions, criteria for determining the fees, the fee schedule, procedures for the collection of fees, the reconsideration process, enforcement and regulatory language addressing enrollment and billing privileges, and provider agreements. In the September 19, 2007 final rule, cost projections were based on FY 2006 actual data and were expected to amount to $37.3 million for FY 2007. These calculations were included in section IV of the final rule (72 FR 53642).

We stated in the final rule that, “if authority for the revisit user fee is continued, we will use the current fee schedule in [the final rule] for the assessment of such fees until such time as a new fee schedule notice is proposed and published in final form.” (72 FR 53628). The current Continuing Resolution continues the authority of the FY 2007 Continuing Resolution from December 14, 2007 through December 21, 2007. Accordingly, the revisit fees will continue to be assessed for the entire time period authorized by the current Continuing Resolution.

Because of the large number of public comments we normally receive on Federal Register documents, we are not always able to acknowledge or respond to all of them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document.

We ordinarily publish a notice of proposed rulemaking in the Federal Register and invite public comment on the proposed rule in accordance with 5 U.S.C. 553(b) of the Administrative Procedure Act (APA). The notice of proposed rulemaking includes a reference to the legal authority under which the rule is proposed, and the terms and substance of the proposed rule or a description of the subjects and issues involved. This procedure can be waived, however, if an agency finds good cause that a notice-and-comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the finding and its reasons in the rule issued. We find that the notice-and-comment procedure is unnecessary in this circumstance because providers and suppliers have already been provided notice and an opportunity to comment on the substance of this rule. This interim final rule with comment merely updates the Congressional authority under which the rule operates.

Therefore, we find good cause to waive the notice of proposed rulemaking and to issue this final rule on an interim basis. We are providing a 60-day public comment period.

We ordinarily provide a 30-day delay in the effective date of the provisions of a rule in accordance with the Administrative Procedure Act (APA), 5 U.S.C. 553(d). However, the delay in the effective date may be waived as, in pertinent part, “provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The Secretary finds that good cause exists to waive the 30-day effective date delay.

The good cause exception to the 30-day effective date delay provision of section 553(d) of the APA is read to be broader than the good cause exception to the notice and comment provision of section 553(b) of the APA.

The legislative history of the APA indicates that the purpose for deferring the effectiveness of a rule under section 553(d) was to “afford persons affected a reasonable time to prepare for the effective date of a rule or rules or to take other action which the issuance may prompt.” S. Rep. No. 752, 79th Cong., 1st Sess. 15 (1946); H.R. Rep. No. 1980, 79th Cong. 2d Sess. 25 (1946). In this case, affected parties do not need time to adjust their behavior before this rule takes effect. This rule merely updates the authority under which the revisit fee is assessed and does not provide any additional requirements for the affected parties. Moreover, with or without a revisit fee, a provider or supplier must be found to have corrected significant deficiencies in order to avoid termination. Additionally, the application of a fee for the revisit does not place appreciable administrative burdens on the affected providers or suppliers. We do not expect appreciable cost to State survey agencies because we are undertaking the billing and collection of the revisit user fee.

We identified in the September 19, 2007 final rule the immediacy of this revisit user fee program and the specific statutory requirement contained limited in the Continuing Resolution that required us to implement the revisit user fee program in FY 2007. Accordingly, providers and suppliers have been on notice for some time that these fees will be imposed, and do not need additional time to be prepared to comply with the requirements of this regulation. We believe that given the short timeframe that we have to collect fees before the statutory authority of the current Continuing Resolution expires, there is good cause to waive the 30-day effective date.

This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.

We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). This rule is not a major rule. The aggregate costs will total approximately $37.3 million in any one year.

The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Individuals and States are not included in the definition of a small entity. Small businesses are small entities, either by nonprofit status or by having revenues of $6.5 million to $31.9 million or less in any one year for purposes of the RFA. The September 19, 2007 final rule provided an analysis on the impact of small entities (72 FR 53642-3). The analysis published in the final rule remains valid. Since this interim final rule with comment merely updates the Congressional authority under which the rule operates, we have determined that this rule will not have a significant impact on small entities based on the overall effect on revenues.

Section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan statistical Area (superseded by Core Based Statistical Areas) and has fewer than 100 beds. This rule affects those small rural hospitals that have been cited for a deficiency based on noncompliance with required conditions of participation and for which a revisit is needed to ensure that the deficiency has been corrected. We identified in the September 19, 2007 final rule that for the effective period of that rule that less than 3 percent of all hospitals may be assessed a revisit user fee and that less than 1 percent of those hospitals would be rural hospitals (72 FR 53643). The analysis published in the final rule remains valid. Since this interim final rule with comment merely updates the Congressional authority under which the rule operates, we maintain that this rule will not have a significant impact on small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $120 million. This interim final rule with comment will have no mandated effect on State, local, or tribal governments and the impact on the private sector is estimated to be less than $120 million and will only effect those Medicare providers or suppliers for which a revisit user fee is assessed based on the need to conduct a revisit survey to ensure deficient practices that were cited have been corrected.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This interim final rule with comment will not substantially affect State or local governments. This rule establishes user fees for providers and suppliers for which CMS has identified deficient practices and requires a revisit to assure that corrections have been made. Therefore, we have determined that this interim final rule with comment will not have a significant effect on the rights, roles, and responsibilities of State or local governments.

There is no change on the impact on providers and suppliers with the publication of this interim final rule with comment. The impact remains as discussed in the final rule (72 FR 53643).

The FY 2007 fee schedule published on September 19, 2007 (72 FR 53647) in the final rule will be retained. As noted in the final rule, the published fee schedule will be used by CMS for the assessment of fees until a new fee schedule is proposed and published in final form. The calculations used to determine the fee as identified in the final rule will be the same (72 FR 53645-6). We will continue to assess a flat fee based on provider or supplier type and type of revisit survey conducted. Table A below identifies the final fee schedule.

We anticipated that the combined costs for all providers and suppliers for all revisit surveys in FY 2007 would total approximately $37.3 million on an annual basis, with onsite revisit surveys amounting to approximately $34.6 million and offsite revisit surveys totaling approximately $2.7 million. (72 FR 53645). However, actual fees assessed in FY 2007 were much less than this amount, since CMS did not charge for revisits that occurred prior to publication of the final regulation. Since we continue to operate under this same estimate for FY 07, we provide below monthly estimates of the impact for the period of the current Continuing Resolution in Tables B and C. For the period of the current Continuing Resolution, we will use the FY 2007 fee schedule established in the final rule for the assessment of fees until a new fee schedule notice is proposed and published as final.

In Table B below, we provide the projected costs for the period of this current Continuing Resolution based on the fee schedule of the final rule. We expect the combined costs for all providers and suppliers for all onsite revisit surveys for the period of this current Continuing Resolution to total approximately $665,000. We first multiplied the total number of onsite revisit surveys in one year by the expected revisit user fees assessed per revisits as finalized in Table A above, estimated by provider or supplier, to obtain the annual cost of revisit surveys. We then divided this number by 52 to obtain the weekly cost per provider or supplier of onsite revisit surveys to obtain the total costs for onsite revisit surveys for the period of the current Continuing Resolution (roughly 1 week). We then totaled all providers and suppliers to achieve the total costs for all onsite revisit surveys for the period of this current Continuing Resolution.

We expect the combined costs for all providers and suppliers for all offsite revisit surveys to total $52,905 for the period of the current Continuing Resolution. In Table C below, we first estimated by provider or supplier the number of offsite revisit surveys expected for an entire fiscal year, and multiplied this number by the expected revisit user fee of $168 per offsite revisit survey to obtain the annual cost of surveys. We then divided this number by 52 to obtain the weekly cost of offsite revisit surveys to obtain the total costs for offsite revisit surveys for the period of the current Continuing Resolution (roughly 1 week).

In Title 48 of the Code of Federal Regulations, Chapter 1 (Parts 1 to 51), revised as of October 1, 2007, on page 508, in section 25.1101, in paragraph (b)(2)(iii), remove “$58,550” and add “$64,786” in its place.