The Federal Credit Union Act (Act) authorizes the NCUA Board to define “low-income members” so that credit unions with a membership predominantly consisting of low-income members can benefit from certain statutory relief and receive assistance from the CDRLF. 12 U.S.C. 1752(5), 1757a(b)(2)(A), 1752a(c)(2)(B), 1772c-1. NCUA defines “low-income members” in parts 701 and 705 of its regulations generally as meaning members whose annual household income falls at or below 80% of the national MHI, but provides a differential for certain geographic areas with higher costs of living. 12 CFR 701.34(a)(2), 705.3(a)(1).

In 2006, NCUA's Member Service Assessment Pilot Program (MSAP) recommended the Board consider reassessing the formula for determining if an FCU qualifies for a low-income designation. According to MSAP, using MFI would be more reflective of the regional economic diversity of the United States and of the circumstances in which FCU members live. The NCUA Outreach Task Force evaluated the MSAP recommendation, identified concerns with the current low-income formula, and agreed with MSAP that the standard for designating low-income credit unions should change from MHI to MFI.

Specifically, NCUA proposes to revise the definition of “low-income members” in §§ 701.34(a)(2) and 705.3(a)(1) to base the determination on an “income standard” that relies on MFI or the alternative of median earnings. For metropolitan areas, the proposal defines low-income members as those living in an area, within the metropolitan area, where the standard is at or below 80% of either the standard for the entire metropolitan area or the national standard, whichever is greater. For members living outside a metropolitan area, the proposal defines low-income members as those living in an area where the standard is at or below 80% of either the statewide non-metropolitan area standard or the national non-metropolitan area standard, whichever is greater.

The Census Bureau designates Metropolitan Areas in accordance with the standards developed by the U.S. Office of Management and Budget. Metropolitan Areas contain a core urban area of 50,000 or more in population and one or more counties, including the counties containing the core urban area and adjacent counties with a high degree of social and economic integration with the urban core. U.S. Census Bureau, http://www.census.gov/population/www/estimates/metroarea.html (April 7, 2008).

The proposed rule will eliminate the confusion associated with adjusting the national MHI for metropolitan areas with higher costs of living. Additionally, it will better align the criteria for a low-income designation with the criteria adding an underserved area to an FCU field of membership (FOM) and certification as a CDFI under Treasury Department regulations. See Interpretive Rulings and Policy Statement (IRPS) 03-1, 68 FR 18334 (April 15, 2003) (as amended by IRPS 06-1, 71 FR 36667 (June 28, 2006)); 12 CFR 1805.201(b)(3)(ii)(D)(2)(i)-(ii).

The proposed amendment includes a five-year grandfather provision to allow existing low-income credit unions (LICUs) to qualify under the new MFI standard or adequate transition time if they no longer qualify for the low-income designation. The proposed rule is not changing or removing other current standards, which credit unions can use to qualify for a low-income designation, based on serving members who are enrolled as students in a college, university, high school, or vocational school. 12 CFR 701.34(a)(2)(ii).

MHI divides the income distribution into two equal groups, half having household incomes above the median, half having incomes below the median. The Census Bureau defines “household” as all the people who occupy a housing unit, such as a house, an apartment or other group of rooms established as separate living quarters. A household includes the related family members and all the unrelated people, if any, such as lodgers, foster children, wards, or employees who share the housing unit. A person living alone in a housing unit, or a group of unrelated people sharing a housing unit such as partners or roomers, is also counted as a household. Households do not include group quarters such as dormitories.

In determining MHI for members of credit unions applying for a low-income designation, NCUA currently applies allowances to the national MHI for geographical areas with higher costs of living. The geographical differentials are based on data from the Employment and Training Administration of the Department of Labor. The differentials are outdated and do not account for all national high-cost areas defined in the current lower living standard income level differentials. See 71 FR 31215 (June 1, 2006). Consequently, some credit unions may not be eligible for low-income designation due to the outdated geographical area differentials in the current regulation.

In addition to the outdated differentials, two concerns related to using MHI as a standard to determine low-income eligibility exist. First, using MHI is inconsistent with the standard NCUA uses to assess whether an area is underserved and has caused confusion between the definitions of “low income” and “underserved.” Second, NCUA's use of the MHI standard is not consistent with the qualification standard used by other federal agencies with policies to foster low-income initiatives, specifically the Treasury Department's CDFI Fund.

The Board believes MFI should be the standard used to determine whether a credit union qualifies for a low-income designation. MFI is the amount that divides the income distribution into two equal groups, half having family incomes above the median, half having incomes below the median. The median is based on family members 16 years old and over with income. The Census Bureau defines a “family” as a group of two or more people related by birth, marriage, or adoption and residing together. MFI is available from the U.S. Census Bureau for both non-metropolitan and metropolitan areas. This is an advantage because it eliminates the need to adjust the income standard for areas with higher costs of living.

NCUA's low-income definition using the MHI standard preceded amendments to FOM provisions in the FCU Act regarding underserved areas. NCUA began using MHI to determine if a credit union qualified for a low-income designation in 1993. 56 FR 21645 (April 23, 1993). In 1998, the FCU Act was amended to permit multiple common-bond FCUs to add underserved areas if, among other requirements, the area met the definition of an “investment area,” as defined in § 103(16) of the Community Development Banking and Financial Institutions Act of 1994. Credit Union Membership Access Act (CUMAA), Public Law 105-219, § 101, 112 Stat. 913, 915 (1998) (codified at 12 U.S.C. 1759(c)(2)(A)(i)); Public Law 103-325, § 103(16), 108 Stat. 2163 (1994).

Treasury Department regulations, implementing the Community Development Banking and Financial Institution Act of 1994, include an MFI at or below 80 percent of the MFI for corresponding metropolitan area as a factor supporting the determination that an area is an investment area. 12 CFR 1805.201(b). As required by CUMAA, NCUA implemented the authority for service to underserved areas by looking to the definition of investment area and included the 80 percent of MFI standard among the criteria that can be used to qualify an underserved area as an investment area. NCUA Chartering and Field of Membership Manual, Chapter 3, II.A., Interpretive Rulings and Policy Statement (IRPS) 03-1, 68 FR 18334 (April 15, 2003) (as amended by IRPS 06-1, 71 FR 36667 (June 28, 2006)). While the 80 percent of MFI standard is among the criteria that can be used to qualify an underserved area as an investment area, an FCU that adds an underserved area does not automatically qualify for the low-income designation.

The low-income formula, however, did not change with the FOM amendments, causing inconsistency within NCUA regulations and creating confusion between the benchmarks used for determining low-income designation and if an area is underserved. The use of MFI as a standard to determine low-income status will bring uniformity and consistency to the regulations, and should eliminate industry confusion regarding the low-income designation and application for an underserved area.

Generally, the current MHI standard differs from the standard other federal agencies use to promote outreach programs, most importantly the Treasury Department's CDFI Fund. The CDFI Fund, through monetary awards and other benefits, helps promote access to capital and local economic growth in urban and rural low-income communities across the nation. Qualifying credit unions obtain assistance from the CDFI Fund to offer financial services to and further economic development of low-income members.

The CDFI Fund uses MFI to implement the Community Development Banking and Financial Institutions Act of 1994, as previously discussed. This has created confusion and, in many instances, placed additional and unnecessary burdens on credit unions attempting to qualify for a low-income designation and assistance from the CDFI Fund.

The CDFI Fund defines “low income” as an income, adjusted for family size, of not more than 80 percent of the metropolitan area MFI or, if appropriate, non-metropolitan area MFI. 12 CFR 1805.104(ee). Because credit unions may apply for financial assistance from the CDFI Fund, the Board believes it would be beneficial to align the low-income formula with the CDFI Fund criteria. This would reduce the regulatory burden on federally-insured credit unions attempting to qualify for benefits of a low-income designation and from the CDFI Fund.

The proposed rule amends the definition of “low-income members” to use the MFI as an income standard instead of MHI. NCUA recognizes not all credit union members meet the Census Bureau's definition of “family.” Therefore, the proposed rule permits credit unions to use the median earnings for individuals reported by the Census Bureau as an alternate income standard for MFI. It also defines the geographic areas NCUA will consider when determining whether a credit union qualifies for a low-income designation.

Additionally, the proposed rule clarifies the process for removing a low-income designation. If a credit union no longer qualifies for the designation, a regional director will give the credit union written notice. Loss of the designation may result for various reasons, including changes in FOM or as a result of mergers, assumptions of member shares from liquidating credit unions, or other similar occurrences. A credit union will have five years after the date of the written notice to come into compliance with regulations applicable to credit unions that do not have a low-income designation. A credit union may appeal the loss of its low-income designation to the Board; an appeal must be filed within 60 days of the date of the written notice of loss of the designation. A credit union will submit its appeal through the appropriate regional office.

The five-year period provides LICUs that lose their low-income designation adequate time to comply with regulatory requirements regarding secondary capital (§ 701.34 and part 702), member business loans (§ 723.17), nonmember deposits (§ 701.32), and CDRLF financial assistance (12 CFR part 705). The reasons for a five-year period include the fact that NCUA regulations require a minimum maturity of five years for secondary capital, 12 CFR 701.31(b)(4)), and CDRLF loans have a maximum maturity of five years, 12 CFR 705.7(c). If a LICU loses its designation under the MFI standard and must repay secondary capital, a CDRLF loan, nonmember deposits, or reduce its member business loans, the five-year period should provide adequate time to make the necessary adjustments.

Finally, the proposed rule makes a conforming amendment to § 705.3, namely, that the meaning of low-income members will be the same in that section as in § 701.34 and will clarify that credit unions qualifying for the low-income designation under § 701.34 may apply for assistance from the CDRLF. Part 705 and § 701.34 would continue to apply to state-chartered credit unions in accordance with § 741.204.

The Board does not anticipate changing from MHI to MFI will have a significant impact on the number of credit unions qualifying for a low-income designation. To offset any potential adverse impact from the change to the MFI standard, the proposed rule includes a grandfather provision to permit current LICUs not meeting the new standard to retain the designation for a five-year period after a final rule becomes effective. During this five-year period LICUs may take advantage of the benefits associated with a low-income designation, including continuing to be eligible for CDRLF program. The reasons for a five-year period for a grandfather provision are the same as those noted above for a five-year period following a loss of the designation for other reasons. By the end of five years after the effective date of a final rule, all LICUs must qualify for the designation using the MFI standard. Any LICU failing to qualify under the MFI standard would automatically lose the low-income designation at the end of this five-year period. Loss of the low-income designation for failure to meet the MFI standard within five years of the effective date of a final rule would not be appealable to the Board.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact any regulation may have on a substantial number of small entities. 5 U.S.C. 603(a). For purposes of this analysis, NCUA considers credit unions having under $10 million in assets small entities. Interpretive Ruling and Policy Statement 03-2, 68 FR 31949 (May 29, 2003). As of December 31, 2007, out of approximately 8,410 federally insured credit unions, 3,599 had less than $10 million in assets.

This proposed rule directly affects all low-income credit unions, of which there are approximately 1,087. NCUA estimates approximately 692 low-income credit unions are small entities. Therefore, NCUA has determined this proposed rule will have an impact on a substantial number of small entities.

NCUA has determined, however, the economic impact on entities affected by the proposed rule will not be significant. The proposed rule will better align criteria for a low-income designation with the criteria for the addition of an underserved area to a federal credit union field of membership under IRPS 03-1 (as amended by 06-1) and certification as a CDFI. The proposed rule will establish one income standard for determining a low-income designation, underserved areas, and investment areas. It will also eliminate the confusion within the credit union industry due to the use of different income standards. NCUA believes the proposed rule will reduce the regulatory burden for LICUs and any economic impact will be minimal. Additionally, NCUA has proposed a five-year period for LICUs affected to make necessary adjustments. Accordingly, the Board certifies this rule will not have a significant economic impact on a substantial number of small entities. NCUA invites comment from the public on whether the proposal will have a significant economic impact on small entities.

The proposed rule does not contain a “collection of information” within the meaning of section 3502(3) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3502(3)) and would not increase paperwork requirements under the Paperwork Reduction Act of 1995 or regulations of the Office of Management and Budget.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The proposed rule would not have substantial direct effect on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined this proposed rule does not constitute a policy that has federalism implications for purposes of the executive order.

NCUA has determined that this proposed rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

NCUA's goal is to promulgate clear and understandable regulations that impose minimal regulatory burden. We request your comments on whether the proposed amendment is understandable and minimally intrusive if implemented as proposed.

For the reasons stated above, NCUA proposes to amend 12 CFR parts 701 and 705 as follows:

NCUA continually reviews its regulations to “update, clarify and simplify existing regulations and eliminate redundant and unnecessary provisions.” NCUA Interpretive Ruling and Policy Statement (IRPS) 87-2, Developing and Reviewing Government Regulations. Under IRPS 87-2, NCUA conducts a rolling review of one-third of its regulations every year, involving both internal review and public comment. As a part of its 2007 regulatory review, NCUA identified an improvement for part 740, the regulation governing notice of insured status, providing insured credit unions greater flexibility in how they meet the requirement of giving notice of their insured status.

The Federal Credit Union Act (Act) requires insured credit unions to display signs at their places of business indicating accounts are insured and also to include in all advertisements a statement to the effect that accounts are insured. 12 U.S.C. 1785(a). The Act authorizes the NCUA Board to promulgate regulations governing the substance of the official insurance sign and the manner it is displayed or used and, also, to address the practicality of including the official statement on insured status in advertisements. Id.

NCUA implements this authority in part 740 of its regulations and, in § 740.5, NCUA requires insured credit unions to include the official advertising statement in all advertisements, including on their main internet pages, with certain exceptions. The basic form of the official statement is “This credit union is federally insured by the National Credit Union Administration.” Currently, the regulation permits shortening the official statement to “Federally insured by NCUA” if used with a reproduction of the official sign in § 740.4(b).

NCUA proposes to revise § 740.5(b) to permit insured credit unions to use, in addition to the basic form of the official advertising statement, the shortened form or the official sign in their advertisements. In other words, the proposed rule will permit insured credit unions, in addition to using the official advertising statement in its advertisements, to use the shortened statement alone or the official sign alone in advertisements. The flexibility this would provide is currently available under the Federal Deposit Insurance Corporation's rule regarding disclosure of insured status in advertisements. 12 CFR 328.3.

Additionally, the proposed amendment clarifies the font of the text in the official sign may be altered as described in § 740.4(b)(2) when it is used as the official advertising statement. 12 CFR 740.4(b)(2).

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact any proposed regulation may have on a substantial number of small credit unions (those under $10 million in assets). The proposed amendment merely expands the options credit unions have to comply with the requirement to notify members and the public of their insured status in advertisements. Accordingly, the NCUA has determined and certifies that the proposed rule, if adopted, will not have a significant economic impact on a substantial number of small credit unions within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

The proposed rule does not contain a “collection of information” within the meaning of section 3502(3) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3502(3)) and would not increase paperwork requirements under the Paperwork Reduction Act of 1995 or regulations of the Office of Management and Budget.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The proposed rule would not have substantial direct effect on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this proposed rule does not constitute a policy that has federalism implications for purposes of the executive order.

NCUA has determined that this proposed rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).

NCUA's goal is to promulgate clear and understandable regulations that impose minimal regulatory burden. We request your comments on whether the proposed amendment is understandable and minimally intrusive if implemented as proposed.

For the reasons set forth above, it is proposed that 12 CFR part 740 be amended as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0415; Directorate Identifier 2007-NM-256-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On January 31, 2000, there was an accident involving a McDonnell Douglas Model DC-9-83 (MD-83) airplane. The National Transportation Safety Board (NTSB) determined that the probable cause of the accident was a loss of airplane pitch control resulting from the in-flight failure of the acme nut threads of the jackscrew assembly of the horizontal stabilizer trim system. The NTSB concluded that the thread failure was caused by excessive wear, resulting from insufficient lubrication of the jackscrew assembly. The drive mechanism of the horizontal stabilizer on Model MD-83 airplanes has a jackscrew assembly with an acme screw. The drive mechanism of the horizontal stabilizer on Boeing Model 737 airplanes has a horizontal stabilizer trim actuator (HSTA) with a ballscrew. Acme screws and ballscrews have some differences in design, but perform similar functions and have the same airplane-level effect following failure.

In response to this accident, Boeing initiated a design review and safety analysis of the primary and secondary load paths of the ballscrew assembly used on the HSTA of their airplanes. During this review, one operator of a Model 757 airplane reported extensive corrosion of a ballscrew assembly of the HSTA. Investigation revealed extensive corrosion of the primary load path ball bearings in the ballscrew assembly. This condition, if not corrected, could result in an undetected failure of the primary load path for the ballscrew in the drive mechanism of the HSTA and subsequent wear and failure of the secondary load path, which could lead to loss of control of the horizontal stabilizer and consequent loss of control of the airplane.

The ballscrew assembly on Model 757 airplanes is similar to those on the affected Model 737 airplanes. Therefore, all of these models may be subject to the same unsafe condition.

We are considering additional rulemaking to address the identified unsafe condition on Model 757 airplanes.

We have reviewed the following Boeing Service Bulletins:

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the(se) same type design(s). This proposed AD would require accomplishing the actions specified in the primary service bulletins described previously.

Boeing has informed us that Model 737-900ER series airplanes were not specifically identified by model name in the Effectivity section of Boeing Alert Service Bulletin 737-27A1277. However, those airplanes are identified by variable numbers in the Effectivity section. Therefore, this AD refers to Model 737-900ER series airplanes where appropriate.

We estimate that this proposed AD would affect 1,602 Model 737 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

The number of work hours, as indicated above, is presented as if the accomplishment of the actions in this proposed AD is to be conducted as new “stand alone” actions. However, in actual practice, the lubrications, detailed inspections, and overhauls are currently being done as part of normal airplane maintenance. The repair can be done coincidentally or in combination with the normally scheduled HSTA and ballscrew overhaul. Therefore, the actual number of necessary additional work hours will be minimal in many instances. Additionally, any costs associated with special airplane scheduling will be minimal.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866,

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

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

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0414; Directorate Identifier 2007-NM-095-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On August 6, 1990, we issued AD 90-17-19, amendment 39-6705 (55 FR 33280, August 15, 1990), for all Boeing Model 747 series airplanes, except the Model 747SP. That AD requires repetitive inspections for cracking and corrosion of all exposed surfaces of the carriage spindles (including the inner bore and aft links) of the trailing edge flaps, and additional inspection and corrective action if necessary. The existing AD also requires repetitive overhaul of the carriage spindle and aft link, which terminates the repetitive inspections. That AD resulted from a report of failure of two aft links in the spindles on one flap, causing control problems during approach and landing. We issued that AD to prevent failure of the trailing edge flaps' carriage spindles, which could result in reduced controllability of the airplane.

Since we issued AD 90-17-19, the manufacturer conducted a dynamic aerodynamic analysis, which showed that the airplane might not have sufficient roll authority to overcome loss of lift caused by a departure of a single left- or right-hand inboard or outboard trailing edge flap. The manufacturer then conducted a structural analysis of the flap attach structure and fail-safe components, which showed that additional inspections should be done to prevent the loss of a flap, and that the flight-hour-based interval required by AD 90-17-19 should be revised to a flight-cycle-based interval because the greatest loads on the spindles happen during takeoff and landing and not during flight.

We have reviewed Boeing Service Bulletin 747-27-2280, Revision 6, dated February 14, 2008. We referred to Boeing Service Bulletin 747-27-2280, Revision 3, dated November 30, 1989, as the appropriate source of service information for accomplishing the actions required by AD 90-17-19. Revision 6 adds a repetitive inspection of all eight carriage spindles and aft links to detect a broken carriage spindle or aft link, and corrective action if necessary. The remaining procedures in Revision 6 of the service bulletin are unchanged from Revision 3 of the service bulletin. The corrective action is replacing the broken part before further flight.

Revision 6 of the service bulletin also revises the overhaul threshold and the repetitive overhaul interval as follows (AD 90-17-19 required the repetitive overhaul):

• The initial overhaul threshold is the earlier of 8 years or a specified number of flight cycles. The number of flight cycles is either 6,000 or 9,000, depending on the airplane group specified in the service bulletin and the type and location of carriage originally installed.

• The repetitive overhaul interval is also the earlier of 8 years or the same specified number of flight cycles based on the same variables.

We have also reviewed Boeing Service Bulletin 747-27-2371, dated December 20, 2000, which applies only to Group 1 and Group 3 airplanes identified in Boeing Service Bulletin 747-27-2280, Revision 6. Boeing Service Bulletin 747-27-2371 describes procedures for replacing the link assemblies with new link assemblies made from improved corrosion-resistant steel (CRES) that has a bearing race that is machined into the link. Doing this replacement eliminates the need for the repetitive overhauls specified in Boeing Service Bulletin 747-27-2280, Revision 6, for that aft link only.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 90-17-19 and would retain certain requirements of the existing AD at revised intervals. This proposed AD would also require a repetitive inspection to detect a broken carriage spindle or broken aft link, and corrective action if necessary. The proposed AD would also include, for certain airplanes, procedures for replacing the link assemblies with new link assemblies made from improved CRES that has a bearing race that is machined into the link, which would end the need for the repetitive overhauls specified in Boeing Service Bulletin 747-27-2280, Revision 6, for that aft link only.

This proposed AD would retain certain requirements of AD 90-17-19. Since AD 90-17-19 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:

We have revised paragraph A.5. of AD 90-17-19 (paragraph (f)(4) of this proposed AD) to allow any part of both carriage spindle/aft link assemblies to be repaired according to data that conform to the airplane's type certificate and that are approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make such findings.

In this proposed AD, the “detailed visual inspection” specified in AD 90-17-19 is referred to as a “detailed inspection.” We have included the definition for a detailed inspection in Note 1 of the proposed AD. We have also included the definition of a general visual inspection in Note 2 of this AD. That definition was not included in AD 90-17-19.

There are about 925 airplanes of the affected design in the worldwide fleet, which includes 160 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate is $80 per work hour.

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

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

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

For the reasons discussed above, I certify that the proposed regulation:

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

On February 26, 2008, the Commission published a request for comment on a proposed amendment to the platinum section of the Guides for the Jewelry, Precious Metals, and Pewter Industries 2 (Jewelry Guides or Guides). The proposed amendment provides guidance on how to mark or describe non-deceptively products that contain at least 500 parts per thousand, but less than 850 parts per thousand, pure platinum and do not contain at least 950 parts per thousand platinum group metals. The Commission also sought comment on whether it should revise the Guides to provide guidance on how to mark or describe platinum-clad, filled, plated, or overlay products. The notice designated May 27, 2008 as the deadline for filing public comments.

Two trade associations that represent jewelry industry members, Platinum Guild International (PGI) and Jewelers Vigilance Committee (JVC), request a 90-day extension of the comment period. The associations explain that the Commission requested responses to 19 questions, that include over 20 subparts, and expressly requested submission of empirical data. 3 PGI states that the current deadline does not provide sufficient time to develop its comments and generate data to address the questions. JVC explains that the current period does not allow sufficient time for its Platinum Task Force  4 to collect the information required to fully address the issues.

Karat Platinum LLC, a marketer of platinum/base metal alloys, filed a comment opposing the request for extension. Karat Platinum asserts that additional time is not needed in order to fully and completely respond to the Commission’s request for comment and that a delay will perpetuate market confusion. Karat Platinum states that the issues surrounding the appropriate terminology for this alloy are not new and many of the questions in the request for comment overlap with those posed in the Commission’s 2005 FRN requesting comment on this issue. 5

The Commission is mindful of the need to deal with this matter expeditiously. However, the Commission also recognizes that its proposal raises complex issues and believes that extending the comment period to facilitate the creation of a more complete record outweighs any harm that might result from any delay. Accordingly, the Commission has decided to extend the comment period to August 25, 2008.

By direction of the Commission.

1. The Federal Energy Regulatory Commission (Commission) proposes to amend its regulations under the Federal Power Act  1 to incorporate by reference the latest version (Version 001) of certain business practice standards concerning the Open Access Same-Time Information Systems (OASIS) and four business practice standards relating to reliability issues adopted by the Wholesale Electric Quadrant (WEQ) of the North American Energy Standards Board (NAESB). These revised standards update earlier versions of these standards that the Commission previously incorporated by reference into its regulations at 18 CFR 38.2 in Order Nos. 676 and 676-B. 2 In addition, we propose to incorporate by reference NAESB's new standards on transmission loading relief for the Eastern Interconnection and public key infrastructure, and add a new OASIS implementation guide.

2. NAESB is a non-profit standards development organization established in January 2002 that serves as an industry forum for the development and promotion of business practice standards that promote a seamless marketplace for wholesale and retail natural gas and electricity. 3 Since 1995, NAESB and its predecessor, the Gas Industry Standards Board, have been accredited members of the American National Standards Institute (ANSI), complying with ANSI's requirements that its standards reflect a consensus of the affected industries. 4

3. NAESB's standards include business practices that streamline the transactional processes of the natural gas and electric industries, as well as communication protocols and related standards designed to improve the efficiency of communication within each industry. NAESB supports all four quadrants of the gas and electric industries—wholesale gas, wholesale electric, retail gas, and retail electric. All participants in the gas and electric industries are eligible to join NAESB and participate in standards development. 5

4. NAESB's procedures are designed to ensure that all industry members can have input into the development of a standard, whether or not they are members of NAESB, and each standard NAESB adopts is supported by a consensus of the relevant industry segments. 6

5. In Order No. 676, with certain specified exceptions, the Commission incorporated by reference into its regulations at 18 CFR 38.2 the Version 000 OASIS Business Practice Standards adopted by NAESB in January 2005. In Order No. 676, the Commission also incorporated by reference into its regulations at 18 CFR 38.2 NAESB's OASIS Standards & Communication Protocols, OASIS Data Dictionary and four business practice standards related to reliability issues. Specifically, the business practice standards related to reliability issues are: Coordinate Interchange, WEQ-004, Version 000; Area Control Error (ACE) Equation Special Cases, WEQ-005, Version 000; Manual Time Error Correction, WEQ-006, Version 000; and Inadvertent Interchange Payback, WEQ-007, Version 000.

6. In Order No. 676, the Commission not only adopted business practice standards and communication protocols for the wholesale electric industry, it also established a formal ongoing process for reviewing and upgrading the Commission's OASIS standards and other wholesale electric industry business practice standards. 7

7. In Order No. 676-B, the Commission incorporated by reference into its regulations at 18 CFR 38.2 the revised Coordinate Interchange Standards adopted by NAESB in June 2005.

8. On December 26, 2007, NAESB filed a report informing the Commission that the NAESB WEQ had ratified WEQ Version 001 of its standards. These standards include several modifications to the existing business practice standards that the Commission incorporated by reference in Order Nos. 676 and 676-B, as well as creating new standards to provide additional functionality for OASIS transactions, transmission loading relief for the Eastern Interconnection, and public key infrastructure. Some of the standards subsequently were corrected by the WEQ and these minor corrections were applied to the Version 001 standards on November 16, 2007. 8 NAESB's WEQ Version 001 includes the following standards:

• Business Practices for Open Access Same-Time Information Systems (OASIS), Version 1.4 (WEQ-001);  9

• Business Practices for Open Access Same-Time Information Systems (OASIS) Standards & Communications Protocols, Version 1.4 (WEQ-002);

• OASIS Data Dictionary, Version 1.4 (WEQ-003);

• Coordinate Interchange (WEQ-004);  10

• Area Control Error (ACE) Equation Special Cases (WEQ-005);

• Manual Time Error Correction (WEQ-006);

• Inadvertent Interchange Payback (WEQ-007);

• Transmission Loading Relief—Eastern Interconnection (WEQ-008);  11

• Standards of Conduct for Electric Transmission Providers (WEQ-009);

• Contracts Related Standards (WEQ-010);

• Gas/Electric Coordination (WEQ-011);  12

• Public Key Infrastructure (PKI) (WEQ-012); and

• Business Practices for Open Access Same-Time Information Systems (OASIS) Implementation Guide, Version 1.4 (WEQ-013).

9. We propose generally to incorporate by reference the NAESB WEQ standards. 13 While many of the standards simply revise or update existing standards, some of the standards address new business practices. For example, NAESB adopted new business practice standards for Resales and Transfers to standardize secondary transmission service on OASIS. These standards also standardize how Resales and Transfers are conducted off OASIS. NAESB also adopted public key infrastructure standards to create greater security for business transactions taking place over the Internet. In addition, NAESB has revised and added standards establishing business practices related to the NERC reliability standards. 14 In particular, NAESB has adopted standards governing transmission loading relief (TLR) that specify business practices for cutting transmission services in the event of a TLR, consistent with the NERC reliability standards. These standards are described more fully in the discussion below.

10. NAESB approved the standards under its consensus procedures. 15 Adoption of consensus standards is appropriate because the consensus process helps ensure the reasonableness of the standards by requiring that the standards draw support from a broad spectrum of all segments of the industry. Moreover, since the industry itself has to conduct business under these standards, the Commission's regulations should reflect those standards that have the widest possible support. In § 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTT&AA), Congress affirmatively requires federal agencies to use technical standards developed by voluntary consensus standards organizations, like NAESB, as a means to carry out policy objectives or activities. 16

11. The Commission is also proposing, consistent with our regulation at 18 CFR 35.28(c)(vi), to require each electric utility to revise its open access transmission tariff (OATT) to include the Version 001 WEQ standards we are proposing to incorporate by reference herein. For standards that do not require implementing tariff provisions, the Commission is proposing to permit the utility to incorporate the WEQ standard by reference in its OATT. We are not, however, requiring a separate tariff filing to accomplish this change. Consistent with our prior practice, we are proposing to give public utilities the option of including these changes as part of an unrelated tariff filing. 17 However, consistent with our prior practice, we propose that, once the Commission incorporates these standards by reference into its regulations, public utilities must abide by these standards even before they have updated their tariffs to incorporate these changes.

12. In Standards WEQ-001, WEQ-002, and WEQ-003, NAESB revises the OASIS Standards currently incorporated by reference by the Commission. More specifically, in Standard WEQ-001, NAESB adopts new standards addressing Resale and Transfer transactions  18 that are consistent with the Commission's policies articulated in Order No. 890. 19

13. In Order No. 890, the Commission adopted reforms to its underlying rules governing capacity reassignments. Specifically, the Commission required that all sales or assignments of capacity be conducted through or otherwise posted on the transmission provider's OASIS on or before the date the reassigned service commences. 20 The Commission directed transmission providers (working through NAESB) to develop the appropriate OASIS functionality to allow such postings and stated that transmission providers need not implement this new OASIS functionality and any related business practices until NAESB develops appropriate standards. These business practices and functionality have now been adopted by NAESB in Standard WEQ-001.

14. The WEQ's Standard WEQ-002 creates a new business practice standard requiring a Standards of Conduct link on the OASIS in response to the Commission's NOPR that preceded Order No. 676. 21 In addition, WEQ Standard WEQ-002 divides the OASIS Standards and Communications Protocols Document (S&CP Document) into two documents, thus separating the technical requirements (which remain in WEQ-002) from the business requirements (now found in WEQ-013). The WEQ's Standard WEQ-003 revises the OASIS Data Dictionary to include minor clarifications or corrections to the format, appearance, or descriptions of standards in standards documentation, as well as corrections and minor revisions that did not materially change a standard.

15. The WEQ's Standard WEQ-013 contains a new OASIS Implementation Guide. While this Standard condenses and incorporates the various OASIS S&CP Document business practices and requirements that formerly were found in WEQ-002 into a separate Implementation Guide, it makes no significant substantive changes to the prior standard.

16. In this NOPR, we propose to incorporate by reference all four of these OASIS-related business practice standards, as revised ( i.e. , Standards WEQ-001, WEQ-002, WEQ-003, and WEQ-013). 22

17. In Version 001, NAESB has adopted new standards for secure communications over the public internet, Public Key Infrastructure (PKI)  23 (WEQ-012). These standards describe the requirements that Certification Authorities (CAs)  24 must meet to claim the electronic certificate that a CA issues meets the NAESB WEQ PKI Standards and to conform to the NAESB Certification Program and, thus, be considered an Authorized Certification Authority (Authorized CA). 25 Providing security for transactions across the public internet is an important part of supporting energy markets and system reliability functions. Therefore, we propose to update our regulations at 18 CFR 38.2 to incorporate by reference Standard WEQ-012.

18. The WEQ has also adopted revisions to business practice standards addressing the business ramifications of certain reliability-related issues.

19. In Version 001 standards for Coordinate Interchange (WEQ-004), NAESB has made additional modifications to the Coordinate Interchange standards that the Commission incorporated by reference into its regulations in Order No. 676-B. 26 These modifications were made to account for a regional difference in the Western Electricity Coordinating Council regarding acceptable backup methods for creating a Request for Interchange, to provide for Purchasing-Selling Entity optional approval rights, to explain the terms “correctable” and “required,” to clarify that tag data elements may be “not correctable” or “not required,” and to make the element of “Energy Product Type” required. These modifications were made as a result of a joint effort of NERC and NAESB via the Joint Interchange Scheduling Working Group which is a committee of both NERC and NAESB participants.

20. We propose to update our regulations at 18 CFR 38.2 to incorporate by reference the Coordinate Interchange Standard WEQ-004, Version 001. However, we seek comment on two aspects of these standards. Standard 004-3.1 states that “[f]or Interchange where the sink is in the Western Interconnection for same day transactions, the last Purchasing-Selling Entity before the DC Tie in the Eastern Interconnection shall be responsible for submitting the e-Tag.” This standard identifies only the last Purchasing-Selling Entity before the DC Tie in the Eastern Interconnection as being responsible for submitting the e-Tag Interchange when the sink is in the Western Interconnection. However, we request comment on whether, based on the NERC standards, this standard also should address whether a Generator Owner or Load Serving Entity may schedule directly to the DC Tie owner.

21. Additionally, Standard 004-6.1.2 states that “[i]f the PSE, LSE, and GPE do not respond to a request from the Interchange Authority, the Interchange is considered passively approved.” While confirmation by silence is a common business practice eliminating unnecessary communications, we request comment on whether this is appropriate for a business practice intended to complement a reliability standard.

22. In the Version 001 standards for Area Control Error (ACE) Equation Special Cases (WEQ-005), NAESB has made only minor modifications to the standards to number the definitions and make other minor edits. We propose to update our regulations at 18 CFR 38.2 to incorporate by reference this revised standard in lieu of the current version of this standard.

23. In the Version 001 standards for Manual Time Error Correction (WEQ-006), NAESB has made changes to remove references to the Electric Reliability Council of Texas (ERCOT), to make minor corrections to the standards for the Western Interconnection, and to make other minor modifications including numbering the definitions. We propose to update our regulations at 18 CFR 38.2 to incorporate by reference this revised standard in lieu of the current version of this standard.

24. In the Version 001 standards for Inadvertent Interchange Payback (WEQ-007), NAESB has made changes to remove references to ERCOT and make other minor modifications including numbering the definitions. We propose to update our regulations at 18 CFR 38.2 to incorporate by reference this revised standard in lieu of the current version of this standard.

25. In Version 001, NAESB has adopted new standards for Transmission Loading Relief—Eastern Interconnection (WEQ-008). NAESB states that these business practice standards are intended to be complementary to the NERC reliability standards INT-004-1—Reliability Coordination—Operations Planning and INT-006-4—Reliability Coordination—Transmission Loading Relief. 27 NAESB reports that its Transmission Loading Relief (TLR) business practice standards are the result of a multi-year joint effort of the NERC Transmission Loading Relief Drafting Team and the NAESB WEQ Business Practices Subcommittee to split the existing NERC Transmission Loading Relief reliability standards into reliability and business practice components. In addition, NAESB states that the NAESB WEQ TLR standards have been further modified to allow for regional differences for market flows. 28 The NAESB WEQ TLR standards include general requirements regarding the use of Interconnection-wide TLR procedures;  29 Interchange Transaction  30 priorities for use with Interconnection-wide TLR procedures; the Eastern Interconnection procedure for physical curtailment of Interchange Transactions; appendices with various examples; and an appendix specifying regional differences for PJM Interconnection, L.L.C./Midwest Independent System Operator, Inc. and for Southwest Power Pool.

26. The Commission seeks to ensure that the NAESB WEQ TLR business practice standards and the proposed NERC TLR reliability standard complement each other and can be implemented together harmoniously. Therefore, we propose to update our regulations at 18 CFR 38.2 to incorporate by reference Standard WEQ-008. We invite comment on this proposal.

27. While we understand that NAESB and NERC have worked collaboratively to coordinate their standard development efforts, there appear to be several occasions in the TLR standards in which the definitions used by the two depart. The following are some examples:

28. There also appear to be some instances in various NAESB standards where the same term is defined differently. For example, the definition of Balancing Authority in Standard WEQ-004-0.3 is not identical to the definition of that same term in Standard WEQ-008-0.4. As the Commission stated in Order No. 676, the standards relating to reliability would be clearer if a single definition were used. Although in Order No. 676 the Commission generally found that NERC should take the lead in defining reliability-related terms,  32 we recognize that good reasons may exist in certain cases for some differences in these terms. We therefore request comment on whether the differences in definitions are significant and whether a single definition for reliability-related terms should be adopted in future standards.

29. The NAESB WEQ standards were adopted pursuant to NAESB's consensus procedures. 33 As the Commission found in Order No. 676, adoption of consensus standards is appropriate because the consensus process helps ensure the reasonableness of the standards by requiring that the standards draw support from a broad spectrum of all segments of the industry. Moreover, since the industry itself has to conduct business under these standards, the Commission's regulations should reflect those standards that have the widest possible support. In section 12(d) of the National Technology Transfer and Advancement Act of 1995, Congress affirmatively requires federal agencies to use technical standards developed by voluntary consensus standards organizations, like NAESB, as a means to carry out policy objectives or activities. 34

30. Office of Management and Budget Circular A-119 (section 11) (February 10, 1998) provides that Federal Agencies should publish a request for comment in a NOPR when the agency is seeking to issue or revise a regulation proposing to adopt a voluntary consensus standard or a government-unique standard. In this NOPR, the Commission is proposing to incorporate by reference a voluntary consensus standard developed by the WEQ.

31. The following collection(s) of information contained in this proposed rule have been submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d). The Commission solicits comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. Respondents subject to the filing requirements of this rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB Control number.

32. The following burden estimate is based on the projected costs for the industry to implement revisions to the WEQ Standards currently incorporated by reference into the Commission's regulations at 18 CFR 38.2 and to implement the new standards adopted by NAESB that we propose here to incorporate by reference.

Total Annual Hours for Collection: (Reporting and Recordkeeping, (if appropriate)) = 2816 hours.

Information Collection Costs: The Commission seeks comments on the costs to comply with these requirements. It has projected the average annualized cost for all respondents to be the following:  35

33. OMB regulations  36 require OMB to approve certain information collection requirements imposed by agency rule. The Commission is submitting notification of this proposed rule to OMB. These information collections are mandatory requirements.

Title: Standards for Business Practices and Communication Protocols for Public Utilities ( formerly Open Access Same Time Information System) (FERC-717); Electric Rate Schedule Filings (FERC-516).

Action: Proposed collection.

OMB Control No.: 1902-0096 (FERC-516); 1902-0173 (FERC-717).

Respondents: Business or other for profit, (Public Utilities—Not applicable to small businesses.)

Frequency of Responses: One-time implementation (business procedures, capital/start-up).

Necessity of the Information: This proposed rule, if implemented would upgrade the Commission's current business practice and communication standards. Specifically, these standards include several modifications to the existing business practice standards as well as creating new standards to provide additional functionality for OASIS transactions, transmission loading relief and public key infrastructure. The standards will assist in providing greater security for business transactions over the Internet, identify the business practices to be used to relieve potential or actual loading on a constrained facility and facilitate the transfer of electric energy between entities responsible for balancing load and generation. These practices will ensure that potential customers of open access transmission service receive access to information that will enable them to obtain transmission service on a non-discriminatory basis and will assist the Commission in maintaining a safe and reliable infrastructure and also will assure the reliability of the interstate transmission grid. The implementation of these standards and regulations is necessary to increase the efficiency of the wholesale electric power grid.

34. The information collection requirements of this proposed rule are based on the transition from transactions being made under the Commission's existing business practice standards to conducting such transactions under the proposed revisions to these standards and to account for the burden associated with the new standard(s) being proposed here ( i.e., WEQ-008 and WEQ-012).

35. Internal Review: The Commission has reviewed the revised business practice standards and has made a preliminary determination that the proposed revisions are necessary to maintain consistency between the business practice standards and reliability standards on this subject. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimate associated with the information requirements.

36. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, Attn: Michael Miller, Office of the Executive Director, 888 First Street, NE., Washington, DC 20426, Tel: (202) 502-8415 / Fax: (202) 273-0873, E-mail: michael.miller@ferc.gov .

37. Comments concerning the collection of information(s) and the associated burden estimate(s), should be sent to the contact listed above and to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503 [ Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-7856, fax: (202) 395-7285].

38. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 37 The Commission has categorically excluded certain actions from these requirements as not having a significant effect on the human environment. 38 The actions proposed here fall within categorical exclusions in the Commission's regulations for rules that are clarifying, corrective, or procedural, for information gathering, analysis, and dissemination, and for sales, exchange, and transportation of electric power that requires no construction of facilities. 39 Therefore, an environmental assessment is unnecessary and has not been prepared in this NOPR.

1. In this Notice of Inquiry, the Commission is seeking comments on its current methodology for the assessment of electric annual charges to public utilities, in particular, whether that methodology remains fair and equitable, and on alternative methodologies. 1 As provided in its current regulations, the Commission recovers the costs of its electric regulatory program through filing fees and, as particularly relevant here, annual charges assessed to public utilities that provide transmission service, based on the volume of electricity transmitted. This methodology reflects that regulation of transmission providers, transmission facilities and transmission service is central to Commission regulation, and that the transmission grid is the interstate highway system for wholesale power sales. This Notice will enable the Commission to determine whether its current methodology remains fair and equitable, and to review alternative methodologies.

2. Although the Commission has held in the past that industry concerns did not justify a change to the annual charges methodology, in response to continued expressions of concern the Commission is issuing this Notice of Inquiry to seek comment on whether the existing methodology remains an appropriate means to recover the costs of the Commission's electric regulatory program or whether there is another more appropriate alternative. The Commission seeks to ascertain whether those industry concerns, although not determinative previously, may now be more valid and, if so, to review alternative proposals for the recovery of the Commission's electric regulatory program costs. The Commission also invites interested parties to submit in this proceeding their views on other possible changes to the Commission's annual charges regulations.

3. The Commission is required by section 3401 of the Omnibus Budget Reconciliation Act of 1986 (Budget Act) 2 to “assess and collect fees and annual charges in any fiscal year in amounts equal to all of the costs incurred * * * in that fiscal year.”  3 The annual charges must be computed based on methods which the Commission determines to be “fair and equitable.”  4 The Conference Report accompanying the Budget Act provides the Commission with the following guidance as to this phrase's meaning:

4. The Commission's annual charges do not enable the Commission to collect amounts in excess of its expenses, but merely serve as a vehicle to reimburse the United States Treasury for the Commission's expenses. 7

5. As required by the Budget Act, the Commission's regulations provide for the payment of annual charges by public utilities to fund the Commission's electric regulatory program. 8 The Commission intends that these annual charges in any fiscal year will recover the Commission's estimated electric regulatory program costs (other than the costs of regulating PMAs and the electric regulatory program costs recovered through electric filing fees) for that fiscal year. In the next fiscal year, the Commission adjusts its annual charges up or down, as appropriate, both to eliminate any over-or under-recovery of the Commission's actual costs and to eliminate any over-or under-charging of any particular person. 9

6. When the Commission first developed an annual charge methodology for public utilities in response to the Budget Act, it assessed charges based on two types of wholesale electricity service: transmission and wholesale sales in interstate commerce. 10 However, in Order No. 641, the Commission determined that the sweeping changes in the industry occurring in the late 1980's and the 1990's had changed the industry landscape, which consequently changed the nature of the Commission's work.

7. In Order No. 641, the Commission noted that open access transmission, functional unbundling, and the rapid movement to market-based power sales rates brought about by Order No. 888, state retail unbundling, and Order No. 2000 encouraging the formation of regional transmission organizations (RTOs) caused the Commission's time and effort to be increasingly devoted to assuring open and equal access to public utilities' transmission systems. Order No. 641 anticipated that wholesale power rates would be increasingly disciplined by competitive market forces and less by direct regulation, and the Commission's workload had, in fact, moved away from its traditional focus on review of bilateral power sales agreements and instead focused increasingly on transmission. In order to reflect those changes, Order No. 641 changed the Commission's annual charges methodology to recover its electric regulatory program costs by assessing charges solely on the MWh of electric energy transmitted in interstate commerce by public utilities providing transmission service, rather than on both jurisdictional power sales and transmission volumes, as in the past. 11

8. As such, sections 382.201(a) and (b) of the Commission's regulations provide that the costs of the Commission's administration of its electric regulatory program (excluding the costs of regulating the PMAs such as the Bonneville Power Administration, 12 and electric regulatory program costs recovered through electric filing fees  13 ) are assessed to public utilities that provide transmission service based on the comparative amount of transmission that they provide; 14 those that have provided more transmission service (i.e., more MWhs) are charged more, and those that have provided less transmission service (i.e., less MWhs) are charged less. 15

9. In calculating annual charges, the Commission first determines the total costs of its electric regulatory program and subtracts all PMA-related costs and electric filing fee collections to determine total collectible electric regulatory program costs. It then uses the data submitted under FERC Reporting Requirement No. 582 (FERC 582) to determine the total volume of transmission and exchanges for all public utilities to be assessed. 16 The Commission divides that transaction volume into its collectible electric regulatory program costs to determine the unit charge per megawatt-hour. Finally, the Commission multiplies the transaction volume for each public utility to be assessed by the unit charge per megawatt-hour to determine the annual charges for each public utility. 17

10. In response to Order No. 641, certain public utilities and members of RTOs and independent system operators (ISO), including municipal utility and cooperative members, expressed concern that this annual charges methodology may be unfair and they alleged that the resulting annual charges fall more heavily on RTO and ISO members than on public utilities that are not RTO or ISO members. These concerns were initially raised in proceedings where RTO and ISO members objected to bills reflecting the charges determined under Order No. 641 and the underlying methodology. Although they did not seek timely rehearing of Order No. 641 itself, they sought rehearing of annual charges bills determined using the Order No. 641 methodology. 18 In a second proceeding, three RTOs and ISOs filed a petition requesting that the Commission initiate a rulemaking proceeding to revise the Order No. 641 methodology, seeking lower annual charges and questioning the assumptions that the Commission made in issuing Order No. 641. 19

11. Those proceedings raised arguments that charges should be assessed to power sales as well as transmission, 20 challenges to the Commission's finding that its work was primarily focused on transmission regulation, 21 assertions that annual charge allocations should reflect the transmission component of bundled retail sales, 22 and claims that the Commission's annual charge assessments do not reflect the level of transmission service in various regions and unduly disadvantage RTOs. The proceedings also addressed the assertion that the Commission had erred in assessing charges to RTOs and ISOs based on services provided for non-jurisdictional members. 23

12. After noting that those arguments represented an untimely attempt to seek rehearing of Order No. 641, the Commission responded to the specifics of each issue. The Commission rejected the arguments that annual charges should be allocated to power sales and arguments questioning whether transmission was the Commission's primary regulatory focus by noting that, in contrast to the timeframe in which the Commission established its previous methodology, the Commission was then focused increasingly on transmission through efforts related to open access transmission service, interconnection policy, and RTO and ISO regulation. 24 The Commission also noted that then-current market regulation efforts such as reforming western markets and promoting standard market design (SMD), while nominally related to power sales, were primarily focused on transmission issues. 25 The Commission reported that its reform of western markets was concerned with transmission scheduling and constraints used to manipulate prices, and its SMD proposal incorporated a new open access transmission tariff and focused on congestion management procedures. 26

13. The Commission rejected the suggestion that it should impose annual charges based on the transmission component of bundled retail sales, noting that such transactions formed no part of the Commission's work load at that time. 27 The Commission also refuted the suggestion that the transaction volumes that it relied on were inaccurate and understated transmission service provided by certain utilities, by pointing out that the reported transaction volumes were subject to audit and correction and annual charge assessments would be updated to reflect any correction. 28 Finally, the Commission justified assessing annual charges on public utilities based on transmission services that they provided to non-jurisdictional entities, noting that such charges were properly recoverable in rates from the non-jurisdictional utility and should be treated like any other cost of providing service. 29

14. The Midwest ISO petitioned the United States Court of Appeals for the District of Columbia for review of the Commission's orders denying the petition for rulemaking. The court denied the petition, but noted the Commission's statement in the Midwest ISO Rehearing Order that “the issues may merit further consideration at a later time.”  30

15. When the Commission issued Order No. 641, it determined that its regulatory focus was turning increasingly towards regulation of transmission service and away from a case-by-case review of wholesale power sales rates. In recognition of this focus on regulating transmission service, Order No. 641 provided for the Commission to recover the costs of its electric regulatory program (not otherwise recovered by, for example, filing fees) through annual charges assessed to public utilities that provide transmission service, based on the volume of electricity transmitted. Regulation of transmission providers, transmission facilities and transmission service remains at the heart of Commission regulation.

16. Although the state of the industry in 2002 and 2003 did not justify a change to the Commission's methodology, the Commission stated that it would reconsider its methodology when the issue merited further consideration. The Commission is now seeking through this Notice of Inquiry to determine whether subsequent developments make it appropriate to revisit Order No. 641 or otherwise suggest the need for changes to its methodology for assessing annual charges to recover its electric regulatory program costs.

17. The Commission continues to devote substantial resources to oversight of transmission service. In February 2007, for example, the Commission issued Order No. 890, amending its regulations and reforming the pro forma open access transmission tariff to ensure that transmission services are provided on a just, reasonable and not unduly discriminatory or preferential basis. 31 In addition, the Commission also continues to commit substantial resources to regulation of the development and operation of RTOs and ISOs. These transmission service providers, moreover, administer complex and comprehensive energy markets and transmission tariffs that serve broad regions—New England, New York, California, the mid-Atlantic and the Midwest, among others. These RTO/ISO markets are based on regional, security-constrained economic dispatch transmission service and locational-based marginal pricing, including transmission congestion charges. Therefore, although the Commission devotes some resources to power sales regulation through its regulation of these markets, the markets are fundamentally linked to transmission service. As a result, assessing annual charges based on transmission has been a fair and equitable means to allocate the costs of regulating these markets (with such costs, in turn, being incorporated into the RTO/ISO transmission rates). Moreover, the Commission devotes extensive resources to resolving hundreds of tariff filings by these entities and their members each year—and these filings are among the most complex that the Commission faces.

18. The Commission thus continues to focus very significant resources on transmission, 32 including implementation of new authority under EPAct 2005 to, among other things, approve and enforce mandatory reliability standards for the bulk-power system, which has as its center the interstate electric transmission grid. 33 Order No. 890, for example, established comprehensive requirements for coordinated, open and transparent transmission planning to facilitate the expansion of the transmission system and to address transmission congestion, which can result in higher energy prices, and other customer concerns.

19. The RTOs and ISOs and their members in their earlier pleadings pointed out that all transmission service in RTOs and ISOs is regulated by this Commission and therefore annual charges are assessed on both wholesale and retail transmission service. This stands in contrast to annual charges paid by a public utility that is not an RTO or ISO member, which may provide both unbundled wholesale transmission service and bundled retail transmission service; for such public utilities, only the former transmission service is considered in allocating the Commission's electric regulatory program costs. This results in a comparatively high percentage of the Commission's annual charges being assessed to RTOs and ISOs.

20. While the nature of Commission regulation of wholesale power sales has certainly changed since adoption of Order No. 641, the Commission continues to regulate wholesale power sales. Comprehensive wholesale power sales rate review proceedings are now comparatively rare. Instead of individual rate proceedings, the Commission reviews new market-based rate power sales applications, electric quarterly reports, and triennial filings and notices of changes in status for market-based rate power sellers. In 2004, the Commission revised the market-power analysis that is used to grant market-based rate authority, and, in 2007, clarified its market-based rate policies. 34 Further, the Commission establishes market rules and mitigation rules for wholesale power sales. Finally, the Commission dedicates enforcement resources to investigating compliance with rules governing wholesale power sales.

21. These facts, in combination with new programs intended to implement new EPAct 2005 authority over certain mergers and other corporate transactions and to sanction market manipulation, warrant the Commission inquiring whether the current system remains fair and equitable, or whether the concerns previously raised by RTOs and ISOs, and their members, or other changes in the industry justify a change to the current electric annual charges methodology.

22. If such a change is justified, the Commission requests comments, as described below, on whether other annual charges assessment methodologies are more suitable than the current methodology. Such alternate methodologies could include, but are not limited to: (i) Assessing annual charges based on jurisdictional wholesale power sales as well as transmission service, 35 (ii) adopting different annual charge calculation methodologies for different types of public utilities to account for regional differences in market structure or to account for the fact that all RTO and ISO transmission service is considered when developing annual charges but that non-RTO and ISO members' bundled retail transmission service is not accounted for in annual charges, or (iii) determining annual charges using factors other than the volume of MWh transmitted in interstate commerce, such as peak load or transmission investment.

23. The Commission requests that interested parties submit comments, taking into account the factors listed in the Conference Report for guidance, on the following inquiries:

24. The Commission invites interested persons to submit comments on the matters and inquiries discussed in this notice, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due May 28, 2008. Comments must refer to Docket No. AD08-7-000, and must include the commenter's name, the organization it represents, if applicable, and its address in their comments.

25. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov . The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

26. Commenters that are not able to file comments electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426.

27. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters are not required to serve copies of their comments on other commenters.

28. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( http://www.ferc.gov ) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

29. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

30. User assistance is available for eLibrary and the Commission's Web site during normal business hours from FERC Online Support at (202) 502-6652 (toll free at (866) 208-3676) or e-mail at ferconlinesupport@ferc.gov , or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov .

The electronic file of this document is available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html .

We last published final rules revising the listings for malignant neoplastic diseases in the Federal Register on November 15, 2004 (69 FR 67017, corrected at 70 FR 15227). In those rules, we indicated that we intended to monitor these listings and to update the criteria for any malignant neoplastic disease contained in these listings as the need arose. We are proposing changes to the listing criteria for malignant neoplastic diseases to reflect our adjudicative experience since we last issued final rules on this body system and to reflect advances in medical knowledge, treatment, and methods of evaluating malignant neoplastic diseases. We are also proposing changes to the introductory text to these listings to provide additional information about how we evaluate malignant neoplastic diseases and to update medical terminology. Many of these proposed changes are based on the answers we provided to our adjudicators who had questions about the current rules.

We propose to make the following changes to 13.00I, “What do these terms in the listings mean?”

• Expand the definition of “inoperable” in current 13.00I1 by adding a reference to the term “neoadjuvant therapy” and defining it. “Neoadjuvant therapy” is antineoplastic therapy, such as chemotherapy or radiation, that you receive before surgery in order to reduce the size of your tumor. In current 13.00I1, we explain that the determination of whether a tumor is inoperable “usually occurs before attempts to shrink the tumor with chemotherapy or radiation”; that is, before the administration of neoadjuvant therapy. However, it is becoming more common in medical practice to wait until neoadjuvant therapy is completed before determining whether a tumor is inoperable. Therefore, we propose to revise current 13.00I1 to define the term “neoadjuvant therapy” and to explain that the determination of whether a tumor is inoperable “may be made before or after neoadjuvant therapy,” to be consistent with current medical practice. Lastly, we propose to make minor editorial changes to clarify our list of examples of when a tumor may be considered inoperable.

• Expand the definition of “unresectable” in current 13.00I2 (proposed 13.00I6) by defining the term “adjuvant therapy” and explaining how the use of this type of therapy relates to a determination of whether a tumor is unresectable. “Adjuvant therapy” is antineoplastic therapy, such as chemotherapy or radiation, that you receive after you have surgery in order to eliminate any remaining cancer cells and lessen the chance of recurrence.

• Add a definition for “metastases” (proposed 13.00I2). In the proposed definition, we explain that “metastases” means spread of tumor cells by blood, lymph, or other body fluid. We also explain that “metastases” does not include the spread of tumor cells by direct extension of the tumor to other tissue or organs.

• Reorganize the section to present the terms in alphabetical order for easier reference.

We propose to make the following changes to 13.00K, “How do we evaluate specific malignant neoplastic diseases?”

• Revise current 13.00K1a and 13.00K1b to refer to “indolent lymphoma” instead of “low grade or indolent lymphoma” to reflect current medical terminology.

• Expand current 13.00K2a to recognize that testicular biopsy is an acceptable method of documenting recurrent leukemia.

• Revise current 13.00K6 to clarify that we consider a brain tumor to be malignant if it is classified as grade II or higher under the World Health Organization's (WHO's) classification of tumors of the central nervous system published in 2007. (See References at the end of this preamble.) For purposes of determining disability, we do not consider grade I tumors to be malignant because they are usually associated with long-term survival, even in the rare situation in which they progress or recur following initial antineoplastic therapy. Although we would not evaluate grade I brain tumors under the listings for malignant neoplastic diseases, we would evaluate them under listing 11.05.

We propose to revise current listing 13.02C, which applied to recurrent soft tissue tumors of the head and neck, except for salivary or thyroid gland tumors. The current listing excludes local vocal cord recurrence. We propose to revise the listing to specify that it does not include “recurrence in the true vocal cord.” The proposed change more accurately reflects our intent. Accordingly, under our proposal as under our current rules, recurrence of the disease in the “false” vocal cord would meet listing 13.02C.

We propose to expand the criteria in current listing 13.03B2 for melanoma with palpable nodal metastases or metastases to adjacent skin (satellite lesions) or elsewhere. A palpable lymph node is a type of “clinically apparent” lymph node. As defined by the American Joint Committee on Cancer (AJCC) in the sixth edition of the Cancer Staging Handbook (see References at the end of this preamble), “clinically apparent” means “detected by imaging studies (excluding lymphoscintigraphy) or by clinical examination.” Current medical literature establishes that a finding of melanoma with metastases to one or more “clinically apparent” lymph nodes is equivalent in severity to palpable nodal metastases. The literature also establishes that a finding of melanoma with metastases to four or more lymph nodes that are not clinically apparent is equivalent in severity to palpable nodal metastases. Therefore, we propose to expand the current listing to include these criteria. We also propose to make a minor editorial change to clarify that “elsewhere” means “distant sites.”

We propose to make the following changes to current listing 13.05A for non-Hodgkin's lymphoma:

• Replace the terms “intermediate or high-grade” and “low-grade or indolent” with the terms “aggressive” and “indolent,” respectively, to reflect current medical terminology;

• Clarify that mycosis fungoides is an indolent lymphoma by removing it from the heading of the listing and including it as an example in proposed listing 13.05A2; and

• Add an example of an aggressive lymphoma and another example of an indolent lymphoma for clarity.

Current listing 13.09B, for carcinoma of the thyroid gland with metastases beyond the regional lymph nodes, provides that we consider this disease to be of listing-level severity when it progresses despite radioactive iodine treatment. We propose to add a criterion, proposed listing 13.09C, for medullary carcinoma of the thyroid gland with metastases beyond the regional lymph nodes. Because medullary carcinoma is not treated with radioactive iodine, it cannot meet current listing 13.09B.

Although we are adding this criterion for adults, we are not adding a comparable criterion for children since medullary carcinoma is extremely rare in children. Instead, we are proposing to include guidance in proposed 113.00K4, the introductory text to the childhood listings, indicating that we will use listing 13.09C in the rare case in which a child has medullary carcinoma of the thyroid gland.

When we published current listing 13.10B, for breast carcinoma, the spread of breast carcinoma to the supraclavicular nodes was considered to be distant metastases. However, the medical community no longer considers this to represent distant metastases for breast carcinoma. Therefore, we propose to add a criterion to current listing 13.10B for metastases to the supraclavicular nodes to make it clear that we will continue to consider metastases to the supraclavicular nodes to be of listing-level severity.

We also propose to add criteria for breast cancer with metastases to the infraclavicular nodes or to 10 or more axillary nodes. In light of the current medical literature, we believe that these findings are indicative of listing-level severity as well.

We propose to remove the words “carcinoma or” from the heading of current listing 13.11, for malignant neoplastic diseases of the skeletal system, to correct an editorial error. A carcinoma is a malignant tumor that begins in the skin or in tissues that line or cover internal organs. Therefore, by definition, a carcinoma cannot originate in the skeletal system.

We propose to make a minor editorial change to current listing 13.13A1 for highly malignant central nervous system neoplasms to clarify that the requirement for documented metastases applies only to medulloblastoma or other primitive neuroectodermal tumors (PNETs), and not to grades III and IV astrocytomas, glioblastoma multiforme, and ependymoblastoma. This is what we intend in the current rule, but we wanted to make the current sentence structure clearer. Therefore, we propose to reorganize the sentence for clarity. We also propose to add the word “malignant” to current listing 13.13A, for central nervous system neoplasms. This would clarify that we do not evaluate benign tumors under this listing.

We propose to expand the criteria in current listing 13.14, for carcinoma of the lungs, by adding proposed listing 13.14C. The proposed listing would provide that an individual with carcinoma of the superior sulcus (including Pancoast tumors) who receives multimodal antineoplastic therapy would be disabled for at least 18 months from the date of diagnosis. This criterion recognizes the debilitating effects of, and the length of time needed to recover from, treatment for this disease. At the end of the 18-month period, we would evaluate any residual impairment(s) under the criteria for the affected body system.

We propose to remove current listing 13.23E1c, for ovarian cancer with ruptured ovarian capsule, tumor on the serosal surface of the ovary, ascites with malignant cells, or positive peritoneal washings. Current medical literature indicates improved prognoses for these clinical findings. Consequently, we believe that these clinical findings do not usually represent an impairment of listing-level severity. We will continue to consider ovarian cancer to be of listing-level severity if it meets the other criteria in current listing 13.23E1; that is, there is tumor extension beyond the pelvis (current listing 13.23E1a), there are metastases to or beyond the regional lymph nodes (current listing 13.23E1b), or the disease is recurrent following initial antineoplastic therapy (current listing 13.23E1d). Because of this proposed deletion, we would redesignate current listing 13.23E1d as listing 13.23E1c.

We propose to revise listing 13.24B for carcinoma of the prostate gland to clarify that “visceral metastases” means metastases to internal organs.

We propose to make a minor editorial change to current listing 13.27 for malignant tumors for which the primary site of origin is unknown. The current listing provides that these tumors are of listing-level severity “except for solitary squamous cell carcinoma in the neck.” We propose to revise this language to read “except for squamous cell carcinoma confined to the neck nodes” for clarity.

We propose to make the following changes in 113.00 to correspond to changes we propose to make in 13.00:

• Add a definition of “metastases” (proposed 113.00I1);

• Reorganize section 113.00I to present the terms in alphabetical order for easier reference;

• Revise the guidance on lymphoma in current 113.00K1a to refer to “aggressive” lymphoma and “indolent” lymphoma and to make minor editorial changes;

• Revise current 113.00K2a to add testicular biopsy as an acceptable method of documenting recurrent leukemia; and

• Revise current 113.00K4 (proposed 113.00K5) to clarify when we consider a brain tumor to be malignant.

We also propose to add a new 113.00K4 to provide guidance on evaluating thyroid tumors. As we indicated above, we are not proposing to add a listing for medullary carcinoma of the thyroid gland to the childhood listings because this disease is extremely rare in children. Instead, we propose to add guidance indicating that we will evaluate this disease in children under listing 13.09C. Because of this addition, we would redesignate current 113.00K4 and current 113.00K5 as 113.00K5 and 113.00K6.

We propose to revise current listing 113.13, for brain tumors, to be consistent with the change we are proposing in current listing 13.13A1.

These proposed rules would affect disability determinations and decisions that we make under titles II and XVI of the Act. In addition, to the extent that Medicare entitlement and Medicaid eligibility are based on whether you qualify for disability benefits under title II or title XVI, these proposed rules would also affect the Medicare and Medicaid programs.

Under title II of the Act, we provide for the payment of disability benefits if you are disabled and belong to one of the following three groups:

• Workers insured under the Act,

• Children of insured workers, and

• Widows, widowers, and surviving divorced spouses (see § 404.336) of insured workers.

Under title XVI of the Act, we provide for supplemental security income (SSI) payments on the basis of disability if you are disabled and have limited income and resources.

Under both the title II and title XVI programs, disability must be the result of any medically determinable physical or mental impairment or combination of impairments that is expected to result in death or which has lasted or can be expected to last for a continuous period of at least 12 months. Our definitions of disability are shown in the following table:

In the Federal Register of February 20, 2002 (67 FR 7620), FDA published a proposed rule entitled “Dental Devices: Classification of Encapsulated Amalgam Alloy and Dental Mercury and Reclassification of Dental Mercury; Issuance of Special Controls for Amalgam Alloy.” In that document, FDA proposed the following actions: (1) Issue a separate classification regulation for encapsulated amalgam alloy and dental mercury; (2) amend the classification for amalgam alloy by adding special controls; and (3) reclassify dental mercury from class I (general controls) to class II. FDA proposed that all three products would have the same labeling guidance as a special control. In addition, FDA proposed that dental mercury would have a voluntary American National Standards Institute (ANSI) standard as a special control; encapsulated amalgam alloy and dental mercury would have voluntary ANSI and International Standards Organization (ISO) standards as special controls; and the amalgam alloy products would have a voluntary ISO standard as a special control. Since that time, a 2006 joint meeting of the Dental Products Panel and the Peripheral and Central Nervous System Drugs Advisory Committee raised the need for FDA to further consider scientific issues that are potentially relevant to this classification and we seek additional comments on the proposed classification.

In an effort to provide an update on the latest scientific information concerning dental amalgam, a working group of the U.S. Department of Health and Human Services, known as the Trans-agency Working Group on the Health Effects of Dental Amalgam, commissioned a new review of the scientific literature in 2004 (the 2004 review). The 2004 review, funded by the National Institutes of Health in cooperation with FDA, the Centers for Disease Control and Prevention, and the Office of the Chief Dental Officer of the Public Health Service, was completed in 2004 by Life Sciences Research Office, Inc. (LSRO). LSRO engaged an independent panel of experts from academia with preeminent qualifications and experience in the appropriate scientific disciplines needed for the 2004 review. The 2004 review was a systematic and comprehensive evaluation of approximately 300 peer-reviewed studies of dental amalgam and mercury vapor published from 1996 through 2003, intended to determine whether these studies provided new evidence related to the health effects of dental amalgam in humans. The panel concluded that the studies contained insufficient evidence to support a correlation or causal relationship between exposure to dental amalgam and kidney or cognitive dysfunction; neurodegenerative disease (specifically Alzheimer's disease and Parkinson's disease); autoimmune disease (including multiple sclerosis); or adverse pregnancy outcomes (Refs. 1 and 2).

Dental amalgam was the subject of an advisory committee meeting in 2006. As announced in the Federal Register of April 3, 2006 (71 FR 16582), on September 6 and 7, 2006, FDA held a joint meeting of the Dental Products Panel and the Peripheral and Central Nervous System Drugs Advisory Committee (the 2006 joint committee). The 2006 joint meeting was held to discuss and make recommendations to FDA on a draft FDA White Paper (2006 draft White Paper) (Ref. 3) regarding the potential adverse health risks associated with exposure to mercury in dental amalgam. The goal of the 2006 draft White Paper was to provide an assessment and conclusions regarding significant new information and health risks from mercury in dental amalgam and to build on previous Public Health Service literature reviews and risk assessments (1993 and 1997) and reviews by other Federal agencies since 1997. The 2006 joint committee, comprised of 24 panelists, heard presentations from the following groups: (1) Scientists; (2) regulatory officials from Canada and Sweden, on the scientific basis for the regulation of dental amalgam in their respective countries; and (3) FDA, on how the United States has regulated and evaluated dental amalgam. Numerous public speakers also presented their views.

The 2006 joint committee then deliberated on a series of questions FDA had posed on its draft review of the dental amalgam literature and provided recommendations to the agency related to those questions (Ref. 4). By majority vote, the committee concluded that FDA's draft White Paper had significant limitations. Among its criticisms, the 2006 joint committee identified insufficient explanation about the following: (1) How the scientific references were chosen; (2) failure to identify the significant gaps in the scientific knowledge, particularly with respect to exposure limits; and (3) lack of attention to sensitive subpopulations. The majority of the 2006 joint committee voted that it could not find the conclusions of the draft White Paper to be “reasonable.”

Despite the limitation on the draft White Paper, the 2006 joint committee generally agreed that there is no evidence that dental amalgams cause health problems. The 2006 joint committee also agreed that the most recent well-controlled clinical studies, including two prospective clinical studies in children (Refs. 5 and 6), showed no evidence of neurological harm from dental amalgams. In addition, a more recent article corroborated this evidence (Ref. 7). Panelists provided individual recommendations, including recommendations that FDA consider requirements related to the use of dental amalgam in pregnant women and small children, as well as patient information to ensure that consumers understand that these devices contain mercury.

FDA believes it is important for members of the public to have the opportunity to further comment on FDA's proposal. Accordingly, FDA is asking for comments concerning whether these devices should be classified into class II (special controls). We specifically request comments supported by empirical data and scientific evidence concerning this classification and these special controls. In addition, if class II (special controls) is the appropriate classification for these devices, FDA requests comment on whether the two types of special controls proposed by FDA in 2002 (materials and labeling) provide reasonable assurance of the safety and effectiveness of these devices and on whether the proposed special control guidance document should be revised in light of the recommendations and with respect to the discussions by the 2006 joint committee.

• Controls on the Materials. For example, should the material controls proposed by FDA address conformance to recognized consensus standards that make recommendations for testing, compressive strength, and identifying the mercury vapor released by the device?

• Labeling Controls. For example, how should labeling controls, if any, address the disclosure of composition, including mercury content, and precautions regarding use of the device in sensitive subpopulations composed of individuals who respond biologically at lower levels of exposure to mercury than the general population? If so, which subpopulations should be included (e.g., children under age 6, pregnant and lactating women, hypersensitive or immunocompromised individuals)? Should the labeling controls require more specific patient labeling (e.g., informing patients of identified sensitive subpopulations of the mercury content, the alternatives to the device and their relative costs, and health risks associated with the failure to obtain dental care)?

For the agency's future analysis of benefits and costs of the regulatory options for dental amalgams, FDA also requests comments, including available data, on the following questions:

(1) How many annual procedures use mercury amalgams? What are the trends?

(2) What are the differences in cost between amalgams and alternative materials (e.g., composite, other metals, ceramics, etc.)? Are there differences in replacement lives?

(3) What are reimbursement rates for dental amalgam and the alternative materials?

(4) How would labeling describing the risks of amalgam for certain subpopulations (e.g., children under age 6, pregnant and lactating women, hypersensitive or immunocompromised individuals) affect the demand for, and use of, mercury amalgam? How would the risks included in the labeling be communicated to those subpopulations?

(5) What is the current exposure to mercury for patients? For professionals? What would be the reduction in exposure associated with the alternatives described previously in this section of this document?

Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments regarding this document. Submit a single copy of electronic comments to http://www.regulations.gov or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

Please note that on January 15, 2008, the FDA Division of Dockets Management Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Governmental-wide, electronic docket management system. Electronic comments or submissions will be accepted by FDA only through FDMS at http://www.regulations.gov .

The following references have been placed on display in the Division of Dockets Management (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

This document contains proposed regulations amending the Procedure and Administration regulations (26 CFR part 301) under section 6503. Section 11311 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508, 104 Stat. 1388) amended section 6503(k) to suspend the period of limitations on assessment when a case is brought with respect to a designated or related summons. Section 6503(k) was redesignated as section 6503(j) by section 1702(h)(17)(A) of the Small Business Job Protection Act of 1996 (Pub. L. 104-188, 110 Stat. 1874).

Proposed regulations under section 6503(j) were previously published in the Federal Register on July 31, 2003 (68 FR 44905) (the 2003 proposed regulations). The 2003 proposed regulations contained a procedure for determining the date of compliance with a designated or related summons issued with respect to a taxpayer whose statute of limitations on assessment was suspended under section 6503(j) because a court proceeding was brought. No comments were received with respect to this procedure or any other aspect of the 2003 proposed regulations, and no hearing was requested or held. The IRS and the Treasury Department have determined that, in the interest of effective tax administration, the procedure in the 2003 proposed regulations is not warranted. Instead, the IRS intends to create procedures by which taxpayers can inquire about the suspension of their periods of limitations under section 6503(j), including the date of compliance with the summons, and to publish these procedures in the Internal Revenue Manual. In addition, the IRS has established administrative procedures in the Internal Revenue Manual that ensure substantial IRS executive involvement and oversight of any designated and related summons issued. Additionally, § 301.6503(j)-1(c)(1)(i) of these proposed regulations requires that any designated summons be reviewed by the IRS Division Commissioner and Division Counsel of the Office of Chief Counsel before it is issued. Accordingly, the 2003 proposed regulations are withdrawn.

These proposed regulations generally provide that the period of limitations on assessment provided for in section 6501 is suspended with respect to any return of tax by a corporation that is the subject of a designated or related summons if a court proceeding to enforce or quash is instituted with respect to that summons.

A designated summons is a summons issued to determine the amount of any internal revenue tax of a corporation for which a return was filed if certain additional requirements are satisfied. A designated summons may only be issued to a corporation (or any other person to whom the corporation has transferred records) if the corporation is being examined under the IRS's coordinated examination program or “any successor program.” The existing successor program to the coordinated examination program is the coordinated issue case (CIC) program.

Section 6503(j)(2)(A)(i) requires that the issuance of the summons be preceded by a review by the regional counsel of the Office of Chief Counsel for the region in which the examination of the corporation is being conducted. The office of regional counsel was eliminated by the IRS reorganization implemented pursuant to the IRS Reform and Restructuring Act of 1998. Because the office of regional counsel no longer exists, these proposed regulations provide that the review must by completed by the Division Commissioner and the Division Counsel of the Office of Chief Counsel (or their successors) for the organizations that have jurisdiction over the corporation whose liability is the subject of the summons. The summons also must be issued at least 60 days before the day on which the statute of limitations on assessment under section 6501 would otherwise expire. Finally, the summons must clearly state that it is a designated summons for purposes of section 6503(j).

A related summons is any other summons that is issued with respect to the same tax return of the corporation as a designated summons and is issued during the 30-day period that begins on the date the designated summons is issued.

Section 6503(j)(1) suspends the period of limitations on assessment under section 6501 for the applicable tax period when a court proceeding is brought with respect to a designated or related summons. For purposes of these proposed regulations, a court proceeding is a proceeding brought in a United States district court either to quash a designated or related summons under section 7609(b)(2) or to enforce a designated or related summons under section 7604. The court proceeding must be brought within the otherwise applicable period of limitations in order to suspend that period under section 6503(j).

The proposed regulations provide that the suspension begins on the day that a court proceeding is brought and continues until there is a final resolution as to the summoned party's response to the summons (discussed in the next section), plus an additional 120 days if a court requires any compliance with the summons at issue. If a court does not require any compliance, then the period of limitations on assessment resumes running on the day following the date of the final resolution and in no event shall expire before the 60th day following the date of final resolution.

Under section 6503(j)(3)(B), the length of the suspension under section 6503(j) depends on when “final resolution” of a summoned party's response to the designated or related summons occurs. The term “final resolution” is not defined in the statute. The legislative history states that the term “final resolution” has the same meaning it has under section 7609(e)(2)(B), relating to third-party summonses. H.R. Conf. Rep. No. 101-964 (1990). Specifically, the conference report states that final resolution means that no court proceeding remains pending and that the summoned party has complied with the summons to the extent required by a court.

Accordingly, the proposed regulations provide that final resolution occurs when no court proceeding remains pending and the summoned party complies with the summons to the extent required by the court. If the summoned party has complied with the summons to the extent required by the court but there still remains time to appeal that order, final resolution occurs when all appeals have been either disposed of or the period in which an appeal may be taken or a request for further review may be made has expired. If all appeal periods have expired but the summoned party has not complied with the summons to the extent required by the court, the proposed regulations provide that final resolution does not occur until the summoned party has complied with the summons to the extent required by the court. Whether a party has complied with the terms of the summons as enforced by a court cannot be determined until the completeness of the materials produced and the testimony given has been evaluated. The IRS intends to create administrative procedures by which the taxpayer can inquire about the suspension of its period of limitations under section 6503(j) and to publish these procedures in the Internal Revenue Manual.

In cases in which a court wholly denies enforcement or orders that the summons in its entirety be quashed, the date of compliance with the court's order is treated as occurring on the date when all appeals are disposed of or when all appeal periods expire. In cases in which a court orders the summons enforced, in whole or in part, the determination of whether there has been full compliance will be made within a reasonable time after the later of the giving of all testimony or the production of all records required by the order. What constitutes a reasonable time will depend on the volume and complexity of the records produced.

If, following an enforcement order, collateral proceedings are brought challenging whether the production made by the summoned party fully satisfied the court order and whether sanctions should be imposed against the summoned party for a failing to do so, the suspension of the periods of limitations shall continue until the order enforcing any part of the summons is fully complied with and the decision in the collateral proceeding becomes final. A decision in a collateral proceeding becomes final when all appeals are disposed of or when the period for appeal or further review has expired.

These proposed regulations provide additional rules regarding the number of designated and related summonses that may be issued with respect to a return for any taxable period, the time within which a court proceeding must be brought to enforce or quash a designated or related summons, the computation of the suspension period in cases of multiple court proceedings, and the computation of the 60-day period for assessment when the last day falls on a weekend or holiday.

The proposed regulations also address the relationship of the suspension period provided for in section 6503(j) with other suspension provisions in the Code. The proposed regulations provide that if a designated or related summons also could be subject to the suspension rules governing third-party summonses under section 7609(e), then the suspension rules in section 6503(j) govern. In addition, the proposed regulations provide that the section 6503(j) suspension period is independent of, and may run concurrently with, any other period of suspension, such as the suspension period for third-party summonses under section 7609(e) if a separate third-party summons also was issued in a case. Examples of these rules are contained in the proposed regulations.

These regulations are proposed to be applicable on the date final regulations are published in the Federal Register .

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation, and because the regulation does not impose a collection of information requirement on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f), this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by a person who timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the hearing will be published in the Federal Register .

The principal author of these regulations is Elizabeth Rawlins of the Office of the Associate Chief Counsel, Procedure and Administration.

Accordingly, under the authority of 26 U.S.C. 7805, the notice of proposed rulemaking (REG-208199-91) that was published in the Federal Register on Thursday, July 31, 2003 (68 FR 44905) is withdrawn.

Accordingly, 26 CFR part 301 is proposed to be amended as follows:

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographic features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

Mr. Todd Newhouse, of the Upland Winery in Outlook, Washington, submitted a petition proposing the establishment of the Snipes Mountain viticultural area on behalf of the grape growers in the Snipes Mountain area. The proposed viticultural area covers 4,145 acres, and currently has 535 acres of commercial vineyards. According to USGS maps that the petitioner provided, Snipes Mountain lies north of the Yakima River, between the towns of Granger and Sunnyside in Yakima County, Washington. [TTB notes that the proposed viticultural area lies entirely within the Yakima Valley viticultural area (27 CFR 9.69), which includes portions of Yakima and Benton Counties in central Washington, and also entirely within the larger Columbia Valley viticultural area (27 CFR 9.74), which includes portions of central Washington and north-central Oregon.] According to the petitioner, the principal distinguishing features of the proposed viticultural area are Snipes Mountain itself, a singular landform rising from the floor of the Yakima Valley, and its comparatively unique, rocky soils. The proposed viticultural area also includes Harrison Hill, east of Snipes Mountain. Harrison Hill has similar soils, and its topography is contiguous with the elevation lines of Snipes Mountain.

The petition explains that in the late 1850s, Ben Snipes built a house at the base of a mountain, which later became known as Snipes Mountain, and developed an expansive cattle operation (see also “The Pacific Northwesterner,” Fall 1959, reprinted as Essay 7265 on http://www.HistoryLink.org ). Since the early 1900s, the Snipes Mountain Irrigation District has provided water to the region. According to the USGS Sunnyside quadrangle map, the main water canal, the Snipes Mountain Lateral, lies to the north of Snipes Mountain. The USGS Granger and Sunnyside quadrangle maps identify Snipes Mountain as an elevated landform between the Yakima River to the south and a single railroad line and Interstate 82 to the north.

The petitioner states that growers began establishing vineyards on Snipes Mountain and adjacent Harrison Hill between 1914 and 1917 (see “The Wine Project: Washington State's Winemaking History” by R. Irvine and W. Clore, Sketch Publications, 1997). The second oldest cabernet sauvignon vines in Washington State have been growing for some 40 years in vineyards on Harrison Hill. These vines have been producing award-winning wines for 15 years. On Snipes Mountain, the Upland Winery, which operated from 1934 to 1972, is being reestablished as a historic winery. Within the current 535 acres of vineyards in the proposed viticultural area, a total of 25 varietals are grown.

According to the provided written boundary description and USGS maps, the elevation of the proposed Snipes Mountain viticultural area boundary line designating the lower end of the AVA runs from 750 to 820 feet around the base of the mountain, and the AVA continues up the mountain and encompasses its peak. The USGS maps show that the proposed viticultural area is on elevated terrain, and comprises vineyards, orchards, roads, trails, a reservoir, intermittent streams, gravel pits, buildings, and a winery. The proposed viticultural area is surrounded by the generally flat Yakima Valley terrain that, in areas, dips to approximately 700 feet in elevation. Two sections of the Yakima River with elevations of 670 feet flow adjacent to the southwest portion of the proposed AVA boundary line. The petitioner notes that at elevations below the 750-foot contour line the valley is flatter and has places, such as ponds and other cold air sinks, which are unsuitable for viticulture.

According to the written boundary description and USGS maps, Harrison Hill borders Snipes Mountain in the eastern portion of the proposed Snipes Mountain viticultural area. According to the petitioner, the soils on Harrison Hill are similar to the dominant soils in the rest of the proposed viticultural area.

The petitioner explains that the 132 acres on the south-facing slopes of Harrison Hill are suitable for successful viticulture and claims that the vineyards on Harrison Hill “are the most important acres we grow.”

According to the petitioner, the distinguishing features of the proposed Snipes Mountain viticultural area include an elevated topography that is steep in places and a geologic history that contrasts with that of the surrounding Yakima Valley area. According to USGS and digital maps provided with the petition, Snipes Mountain stands alone in the center of the wide Yakima Valley like the crown of a brimmed hat. The petitioner notes that the Snipes Mountain region comprises the Ellensburg Formation. This formation consists of alluvial outwash, the parent material of the unique soils in the Snipes Mountain region.

The petitioner describes Snipes Mountain and adjacent Harrison Hill as rising visibly from the Yakima Valley floor. The USGS Sunnyside and Granger maps show that the 1,301-foot pinnacle of Snipes Mountain contrasts with the 680- to 780-foot elevations of the surrounding valley floor. The petitioner notes that about a third of the Yakima Valley viticultural area is level, and cites the digital elevation maps of the Yakima Valley and Snipes Mountain from Washington State 10m Digital Elevation Model data.

The petitioner explains that the north side slopes of Snipes Mountain gradually increase in elevation but the south side slopes are steeper. As shown on USGS maps, the south side slopes increase from 850 to 1,200 feet in elevation over a short distance. According to the petitioner, these steeper slopes are suited to viticulture because they have good air drainage, which helps to prevent spring and fall frost damage to the plants in the vineyards.

According to the Washington Division of Geology and Earth Resources, the geology of central Washington consists mainly of a volcanic basalt mantle 10 to 15 million years old (“Late Cenozoic Structure and Stratigraphy of South-Central Washington,” by S.P. Reidel, N.P. Campbell, K.R. Fecht, and K.A. Lindsey, Bulletin 80, pp. 159-180, 1994). Further study shows that subsequent alluvial events covered portions of the Yakima Valley, creating the Ellensburg Formation (“Sedimentology of proximal volcaniclastics dispersed across an active foldbelt: Ellensburg formation (late Miocene), central Washington,” by G.A. Smith, Sedimentology 35: 953-997, 1988). The Ellensburg Formation consists of a conglomerate of round, river-washed rocks and coarse sediment; tectonic uplift created Snipes Mountain (Reidel et al. ).

The petitioner describes the soils in the proposed viticultural area based on the Soil Survey of the Yakima County Area, Washington (U.S. Department of Agriculture, Soil Conservation Service, 1985). The petitioner also provides a table that compares soil series in the established Yakima Valley viticultural area with those in the proposed Snipes Mountain viticultural area. The comparison is based on parent material, and shows the soils that resulted from differing geological events in each region. The petitioner explains that almost all soils on Snipes Mountain were deposited by an ancient flood and are now in a dry environment. The soils are older, have more rock fragments, and are drier than the soils elsewhere in the Yakima Valley region.

One third of the soils in the Yakima Valley viticultural area formed in alluvium and 30 percent of the soils formed in loess over lacustrine deposits. In contrast, within the proposed Snipes Mountain viticultural area only 3.32 percent of the soils are alluvial soils. These soils are of small extent because tectonic uplift exposed the southwest face of Snipes Mountain, lifting it above the influence of additional alluvial deposits. Warden soils formed in loess over lacustrine deposits, and these soils cover 53 percent of the proposed Snipes Mountain viticultural area. Typically, these soils are on the north- and northeast-facing slopes, in positions where the parent material was in place prior to tectonic uplift. The Harwood-Burke-Wiehl soils comprise 13.6 percent of the soils in the proposed viticultural area, compared to less than 1 percent of the entire Yakima Valley viticultural area.

On Snipes Mountain 82 percent of the soils are classified as Aridisols. Aridisols are low in organic matter and are in generally dry areas. In the Yakima Valley 47 percent of the soils are classified as Aridisols, but 43 percent are classified as Mollisols. Mollisols have a deep, dark surface horizon with a high content of organic matter. Typically, they are low lying and near ground water that supplies moisture to plants, which ultimately increase the accumulation of organic matter.

According to the petitioner, vineyards on the south-facing slopes of Harrison Hill have produced highly valued grapes. The soils on Harrison Hill and Snipes Mountain are similar. The steeper, south-facing slopes of Snipes Mountain provide excellent air drainage to protect the grapevines, making them less susceptible to spring and fall frost damage.

TTB concludes that this petition to establish the 4,145-acre Snipes Mountain viticultural area merits consideration and public comment, as invited in this notice.

See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.

The petitioner provided the required maps, and we list them below in the proposed regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. If we establish this proposed viticultural area, its name, “Snipes Mountain,” will be recognized as a name of viticultural significance under 27 CFR 4.39(i)(3). Consequently, wine bottlers using “Snipes Mountain” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's name as an appellation of origin. On the other hand, we do not believe that any single part of the proposed viticultural area name standing alone, such as “Snipes” would have viticultural significance if the new area is established. Accordingly, the proposed part 9 regulatory text set forth in this document specifies only the full “Snipes Mountain” name as a term of viticultural significance for purposes of part 4 of the TTB regulations.

For a wine to be eligible to use a viticultural area name or other term of viticultural significance as an appellation of origin or in a brand name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name or other term of viticultural significance appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term of viticultural significance appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a previously approved label uses the name “Snipes Mountain” for a wine that does not meet the 85 percent standard, the previously approved label will be subject to revocation, upon the effective date of the approval of the Snipes Mountain viticultural area.

Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We invite comments from interested members of the public on whether we should establish the proposed viticultural area. We are also interested in receiving comments on the sufficiency and accuracy of the name, boundary, climatic, and other required information submitted in support of the petition. The easternmost portion of the proposed boundary line includes the south side of the adjacent Harrison Hill, which the petitioner describes as having important vineyards. We are especially interested in receiving any comments on the appropriateness of our including the southern part of Harrison Hill in the proposed Snipes Mountain viticultural area. We are also particularly interested in any comments on whether the evidence regarding name and distinguishing geographical features is sufficient to warrant the establishment of this new viticultural area within the existing Yakima Valley and Columbia Valley viticultural areas. Please provide any available specific information in support of your comments.

Because of the potential impact of the establishment of the proposed Snipes Mountain viticultural area on wine labels that include the words “Snipes Mountain” as discussed above under Impact on Current Wine Labels, we are particularly interested in comments regarding whether there will be a conflict between the proposed area name and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any negative economic impact that approval of the proposed viticultural area will have on an existing viticultural enterprise. We are also interested in receiving suggestions for ways to avoid any conflicts, for example by adopting a modified or different name for the viticultural area.

Although TTB believes that only the full “Snipes Mountain” name should be considered to have viticultural significance upon establishment of the proposed new viticultural area, we also invite comments from those who believe that “Snipes” standing alone would have viticultural significance upon establishment of the area. Comments in this regard should include documentation or other information supporting the conclusion that use of “Snipes” on a wine label could cause consumers and vintners to attribute to the wine in question the quality, reputation, or other characteristic of wine made from grapes grown in the proposed Snipes Mountain viticultural area.

You may submit comments on this notice by using one of the following two methods:

• Federal e-Rulemaking Portal: You may send comments via the online comment form posted with this notice within Docket No. TTB-2008-0003 on “Regulations.gov,” the Federal e-rulemaking portal, at http://www.regulations.gov. A direct link to that docket is available under Notice No. 82 on the TTB Web site at http://www.ttb.gov/wine/wine_rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For complete instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.”

• Mail: You may send written comments to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 82 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals.

If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via http://www.regulations.gov, please enter the entity's name in the “Organization” blank of the comment form. If you comment via mail, please submit your entity's comment on letterhead.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

We will post, and you may view, copies of this notice, selected supporting materials, and any online or mailed comments we receive about this proposal within Docket No. TTB-2008-0003 on the Federal e-rulemaking portal, Regulations.gov, at http://www.regulations.gov. A direct link to this docket is available on the TTB Web site at http://www.ttb.gov/wine/wine_rulemaking.shtml under Notice No. 82. You may also reach the relevant docket through the Regulations.gov search page at http://www.regulations.gov. For instructions on how to use Regulations.gov, visit the site and click on “User Guide” under “How to Use this Site.”

All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. We may omit voluminous attachments or material that we consider unsuitable for posting.

You also may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5 x 11-inch page. Contact our information specialist at the above address or by telephone at 202-927-2400 to schedule an appointment or to request copies of comments or other materials.

We certify that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

N.A. Sutton of the Regulations and Rulings Division drafted this notice.

For the reasons discussed in the preamble, we propose to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kansas program on January 21, 1981. You can find background information on the Kansas program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the January 21, 1981, Federal Register (46 FR 5892). You can also find later actions concerning the Kansas program and program amendments at 30 CFR 916.10, 916.12, 916.15, and 916.16.

By letter dated November 19, 2007 (Administrative Record Nos. 626 and 627), Kansas sent us amendments to its program under SMCRA (30 U.S.C. 1201 et seq. ). Kansas sent the amendments in one package, identifying the Kansas 2006 Revegetation Success Guidelines as KS-024-FOR and the Normal Husbandry Practices as KS-025-FOR. We have combined both amendments under one docket number (Docket No. OSM-2008-0001). We announced receipt of the amendment in the January 23, 2008, Federal Register (73 FR 3894) and invited public comment on its adequacy. The public comment period closed February 22, 2008. Kansas submitted these amendments at their own initiative.

During our review of the previous submitted proposed amendments (Kansas's 2006 Revegetation Success Guidelines and Normal Husbandry Practices, Administrative Record Nos. 626 and 627), we identified incorrectly cited regulation references. We notified Kansas of our concerns by telephone on February 7, 2008, (Administrative Record No. 626.08). Kansas, by email on February 7, 2008 (Administrative Record No. 626.06), sent us revisions to its proposed amendments for review under SMCRA (30 U.S.C. 1201 et seq. ). These revisions concern new promulgated Kansas Regulations ( Kansas Department of Health and Environment Amended Permanent Regulation ), which coincide with regulation citations used in its proposed 2006 Revegetation Success Guidelines and Normal Husbandry Practices for Surface-Mined Lands.

Kansas's new regulations contain a substantial number of grammatical changes to update outdated language and codifications. Changes can be found in the following articles:

Article 2—Meaning of Terms 47-2-75, Article 3—Application for Mining Permit 47-3-42, Article 4—Public Hearing 47-4-14a, Article 5—Civil Penalties 47-5-5a, Article 6—Permit Review 47-6-1, Article 6—Permit Review 47-6-2, Article 7—Coal Exploration 47-7-2, Article 8—Bonding Procedures 47-8-9, Article 9—Performance Standards 47-9-1, Article 9—Performance Standards 47-9-4, Article 10—Underground Mining 47-10-1, Article 11—Small Operator Assistant Program 47-11-8, Article 12—Lands Unsuitable Surface Mining 47-12-4, Article 13—Training, Certification, and Responsibilities of Blasters and Operators 47-13-4, Article 14—Employee Financial Interests 47-14-7, Article 15—Inspection and Enforcement 47-15-1a, Article 16—Reclamation 47-16-9, Article 16—Reclamation 47-16-10, and Article 16—Reclamation 47-16-12.

Kansas proposes more specific substantive revisions to its regulations in the following articles and sections:

K.A.R. 47-3-42, Article 3—Application for Mining permit, (5)(a)(55): Kansas proposes to delete subsection (d) of this article.

K.A.R. 47-4-14a, Article 4—Public Hearing, document filing section (2)(c)(2): Kansas proposes to delete references to the Administrative Appeals Section of the Kansas Department of Health and Environment, Suite 400D, 109. SW 9th, Topeka, Kansas 66612-1215 and add the Office of Administrative Hearings, a division of the Kansas Department of Administration.

K.A.R 47-4-14a, Article 4—Public Hearing section (d)(3)(A): Kansas proposes to delete the phrase, “a presiding officer shall be assigned by the department for the prehearing conference, exercising the same discretion as is provided by subsection (d)(2) concerning the selection of a presiding officer for a hearing.”

K.A.R. 47-5-5a, Article 5—Civil Penalties (a): Kansas proposes to insert a new penalty table, change the dollar amount assessed for separate violations for each day, and add new language in section 47-5-5 (d)(1): Delinquent payment.

K.A.R. 47-5-5, Article 5—Civil Penalties (b)(13): Kansas proposes to delete reference to the Administrative Appeals Coordinator, Administrative Appeals Section, Office of the Secretary, Kansas Department of Health and Environment, Mills Building, Suite 400D, 109 SW. 9th Street, Topeka, Kansas 66612-1215 and add the Office of Administrative Hearings, a division of the Kansas Department of Administration.

We are reopening the comment period on the proposed Kansas program amendment to provide you an opportunity to reconsider the adequacy of the amendment in light of the additional materials sent to us. Under the provisions of 30 CFR 732.17(h), we are requesting comments on whether the amendment satisfies the program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Kansas program.

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES ). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Tulsa Field Office may not be logged in.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. on May 13, 2008. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak, and others present in the audience who wish to speak, have been heard.

If there is only limited interest in participating in a public hearing, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. This determination is based on the fact that the Kansas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Kansas program has no effect on federally-recognized Indian tribes.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

In 1917 Congress established Mount McKinley National Park as a game refuge. By 1932, the park had been enlarged to approximately 2 million acres. In 1980 the Alaska National Interest Lands Conservation Act tripled the size of the park and renamed it Denali National Park and Preserve. At 6 million acres, Denali exemplifies interior Alaska's character as one of the world's last great frontiers for wilderness adventure. One third of the park is designated wilderness-the area that roughly conforms to the boundaries of the former Mount McKinley National Park. The former Mount McKinley is closed to hunting and trapping and is managed to maintain the undeveloped wilderness parkland character. The 1980 park additions allow customary and traditional subsistence uses by local rural residents. The preserve is open to subsistence uses and also to hunting and trapping under Alaska state law.

The proposed regulations would revise Denali National Park and Preserve regulations in Subpart L of 36 CFR Part 13. The proposed rule implements the 2006 Final Environmental Impact Statement (EIS) and Record of Decision (ROD) regarding the Denali Backcountry Management Plan (BMP) as well as the 2007 Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) for subsistence use of off-road vehicles in the Cantwell Traditional Use Area. Specific proposed changes include (1) establishing group size limits in the backcountry, an annual limit of 1500 climbers on Mount McKinley, and camping permits where they are currently required through the compendium in accordance with the 2006 BMP/EIS; and (2) restricting off-road vehicle use for subsistence purposes to designated routes and trails in Windy Creek, Cantwell Creek, and Bull River drainages in the Cantwell Traditional Use Area in accordance with the 2007 EA/FONSI. Each proposal is identified in the Section-by-Section Analysis that follows. As used within this document, the terms “we,” “our,” and “us” refer to the National Park Service.

ANILCA and NPS implementing regulations authorize subsistence hunting and fishing by local rural residents in parks and monuments established in 1980 and the portions of Denali National Park expanded in 1980. In Denali National Park, local rural residents are those who reside in a resident zone community identified in section 13.902, those who possess a permit issued by the superintendent under section 13.440 of this Part, and those who reside within the park boundary. A resident zone community consists of a significant concentration of local rural residents who customarily and traditionally engaged in subsistence uses in the park or monument. Section 808 of ANILCA establishes a Subsistence Resource Commission (SRC) to make recommendations to the Secretary of the Interior regarding subsistence hunting matters for each national park or monument in Alaska where subsistence is authorized. In 1984, the NPS, in consultation with the Denali SRC, determined the area within a three mile radius of the Cantwell Post Office includes a significant concentration of local rural residents who customarily and traditionally engage in subsistence uses in the park additions. The three mile radius provision has been part of the Denali Subsistence Management Plan since August 2000 and the park compendium since 2001.

The 1980 Alaska National Interest Lands Conservation Act (ANILCA) authorizes subsistence uses by local rural residents where traditional in the ANILCA additions of Denali National Park (Denali park additions). Section 811(b) of ANILCA authorizes the “appropriate use [of] * * * surface transportation traditionally employed” for subsistence uses by federally qualified local rural residents, subject to reasonable regulation.

Relying on information available at the time, the 1986 Denali General Management Plan (GMP) did not consider ORVs to have been regularly used for subsistence purposes and therefore did not consider them a traditional means of subsistence access. In the 1990s, several Cantwell residents provided information new to the NPS regarding historic off-road vehicle use for subsistence purposes in the Cantwell area of the Denali park additions and requested a revision to the GMP to allow traditional subsistence ORV use. The information included affidavits from Cantwell residents describing their use of ORVs for subsistence purposes, including types of ORVs, periods of use, location of use, purpose of use, and identified individuals who used ORVs. Upon reviewing the information, in 2005 the NPS determined that ORVs were used by successive generations of Cantwell residents for subsistence in the Cantwell area (Cantwell Traditional Use Area or TUA) of the Denali National Park additions (see 2005 Determination for Traditional ORV Use for Subsistence in the Cantwell Area) and therefore are authorized for subsistence purposes in this area under ANILCA section 811 and 36 CFR 13.460.

In 2005 the park initiated a planning process and accompanying EA to assure that subsistence ORV use in the Cantwell Traditional Use Area is managed to minimize adverse impacts to the resources and values for which the park was established while continuing to provide reasonable access for subsistence purposes. Each year since the 2005 Determination, the NPS has implemented seasonal closures to subsistence ORV use in the Traditional Use Area—excluding the trails identified in this proposal—during the fall subsistence hunting season to protect park resources while the EA was being prepared and until permanent regulations are put into place.

The Cantwell Subsistence Off-Road Vehicle Management EA was completed in 2007 and a FONSI was signed shortly thereafter. The NPS decided that only designated trails and areas in the Traditional Use Area would remain open to use of ORVs by federally qualified subsistence users from Cantwell and those residents of Game Management Unit 13E holding a permit issued pursuant to 36 CFR 13.440 for subsistence purposes. The designated trails and areas are: Windy Creek Access Trail, Windy Creek Bowl Trail, Cantwell Airstrip Trail, Pyramid Peak Trail, and the Cantwell Creek Floodplain Corridor. Future designation of a trail and area along the Bull River Floodplain Corridor is contingent upon access being secured across adjacent state lands, construction of an NPS approved trail, and a determination by the superintendent that ORV use continues to be necessary for reasonable access to the Bull River for subsistence resources. ORV use within the Bull River Floodplain Corridor and Cantwell Creek Floodplain Corridor would be limited to designated trails and unvegetated gravel bars. Motor vehicle use off of designated trails or areas would be prohibited.

This provision would also establish the types of ORVs that may be operated on designated trails or areas, who is authorized to use ORVs, and methods to notify the public of closures or restrictions should changing environmental conditions warrant. Nothing in this provision would supersede the provisions of 36 CFR 13.460(d), which requires that ORVs be operated in compliance with applicable state and federal laws, and prohibits damaging park resources or harassing wildlife.

Should credible information become available in the future regarding subsistence ORV use in other areas of the park additions or preserve, the park will at that time consider whether such ORV use is traditional under ANILCA section 811.

The 2005 Cantwell Subsistence Traditionally Employed ORV Determination as well as the 200 EA and FONSI are available at park headquarters, http://www.regs.gov, and http://www.nps.gov/dena/parkmgmt/managementdocs.htm.

This provision would replace the existing camping regulation that allows camping in accordance with the BMP, moving a camping permit requirement in the high visitation areas of the park from the compendium to regulation. This proposal would clarify that camping permits are required in the former Mount McKinley National Park and the Kantishna area. Based on visitation patterns, the NPS does not believe camping permits are necessary in other areas of the park or preserve at this time and therefore are not required.

This provision would implement the 2006 BMP/EIS decisions on group size. The BMP/EIS calls for a maximum backcountry group size of 12 for the eastern half of the park and a maximum of 6 in the western half of the park and preserve. The western half of the park has a lower group size limit. The western portion of the park and preserve are managed to provide opportunities for extended expeditions that are remote with little evidence of humans and few encounters with other visitors. The eastern half of the park receives more visitation, has more evidence of humans, and visitors should expect a greater likelihood of contacting others. This proposal would also provide the superintendent with discretion to authorize larger groups on a case by case basis.

This provision would implement sections of the 2006 BMP/EIS by requiring a permit to climb Mount McKinley or Mount Foraker and also establish a limit on the number of climbers on Mount McKinley. An existing 60 day advance registration requirement under current regulations was crafted with the intention of reducing climbing-related accidents and altitude illnesses on Mount McKinley and Mount Foraker. Prior to its promulgation, mountaineering teams could register the same day they departed for the mountain, often with little or no advance preparation or contact with experienced mountaineering rangers. With the advance contact, rangers have an early opportunity to evaluate an expedition's climbing history and make safety recommendations accordingly. These recommendations include urging additional glacier travel, altitude, or winter camping experiences prior to any ascent of Mount McKinley or Foraker; suggesting climbing with an authorized guiding service; or encouraging a more appropriate route based on the reported level of expertise. The advance notice also provides a climbing team adequate time to choose a leader, organize its members, and pre-plan the expedition for improved safety.

This proposal would change the current registration requirement to a permit requirement and would establish an annual limit of 1500 climbers on Mount McKinley as called for in the BMP/EIS. Due to limited capacity by the NPS to provide required safety briefings, conduct ranger patrols, contact climbers on Mount McKinley, and respond to search and rescue incidents, the NPS determined more than 1500 climbers may compromise visitor and employee safety, potentially resulting in more fatalities. Over the past ten years, there has been an annual average of 1226 climbers attempting Mount McKinley, with a maximum of 1340 in 2005.

This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. However, it is anticipated that governmental processes and economic efficiency in Denali National Park and Preserve would be improved by this proposed regulatory action.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This is an agency-specific rule that will not interfere with other agencies or local government plans, policies, or controls. The proposals included with this rulemaking apply to areas managed by the National Park Service and do not conflict with other federal regulations. The review process used to develop the rulemaking proposals included consultation with the State of Alaska.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs, or the rights and obligations of their recipients. This rule will have no effects on entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does not raise novel legal or policy issues. This rule implements existing legislative enactments, judicial interpretations, regulatory provisions, and planning decisions. It is not a completely new proposal, but rather a continuation of the rulemaking process begun in 1980 to implement various provisions of the Alaska National Interest Lands Conservation Act (ANILCA). In implementing ANILCA, NPS has sought to promulgate only those regulations necessary to interpret the law and to provide for the health and safety of the public and the environment.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The economic effects of this rule are local in nature and negligible in scope. The proposals in this rulemaking will either implement rules unrelated to business activity or, in the case of the proposed annual climbing limits for Mount McKinley, does not extend beyond the usual contractual limits for small entities authorized to do business in the park. Consequently, the proposed rule will have no effect on small entities.

This rule is not a major rule under 5 U.S.C. 804(2), SBREFA. This rule:

a. Does not have an annual effect on the economy of $100 million or more. Expenses related to compliance with various provisions of this proposed rule are slight. No new user fees or charges are proposed. Any incidental costs associated with the proposed climbing permits would be covered by or instead of those for the existing registration, check-in, or orientation programs and would not be additional.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions. Most of the proposed provisions of this rulemaking will generally continue existing rules and use patterns for Denali National Park and Preserve.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The various provisions of this proposed rule do not apply differently to U.S.-based enterprises and foreign-based enterprises.

This rulemaking addresses only actions that will be taken by the NPS. It will not require any State, local or tribal government to take any action that is not funded. In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

a. This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. This rule is an agency specific rule and imposes no other requirements on small governments.

b. This rule will not produce a federal mandate of $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implication assessment is not required because no taking of property will occur as a result of this proposed rule.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The proposed rule is limited in effect to federal lands and waters managed by the NPS and will not have a substantial direct effect on state and local government in Alaska. This proposed rule was initiated in part at the request of the state and has been drafted in close consultation with the State of Alaska and, as such, promotes the principles of federalism.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of §§ 3(a) and 3(b)(2) of the order. This rule does not impose a new burden on the judicial system.

This regulation requires information collection from 10 or more parties, which must be submitted for OMB approval under the Paperwork Reduction Act. However, these are not new collection requirements and, therefore, no additional request to OMB has been prepared. The information collection activities are necessary for the public to obtain benefits in the form of camping and climbing permits.

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A Record of Decision (ROD) for the Denali National Park and Preserve Final Backcountry Management Plan Environmental Impact Statement was approved on February 21, 2006. On September 18, 2007, a Finding of No Significant Impact (FONSI) was approved for the Cantwell Subsistence ORV Management Environmental Assessment. These documents together represent the environmental analysis for this proposed rule, and are available for review at: http://www.nps.gov/dena/parkmgmt/managementdocs.htm, or http://www.regulations.gov

In accordance with Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); the Department of the Interior—Alaska Policy on Government-to-Government Relations with Alaska Native Tribes dated January 18, 2001; part 512 of the Departmental Manual, Chapter 2 “Departmental Responsibilities for Indian Trust Resources”; and park consultation agreements with tribal governments, the potential effects on Federally-recognized Indian tribes have been evaluated, and it has been determined at this time that there are no potential effects that have not been addressed in prior decision documents.

While the consultation agreements noted above have not resulted in findings of new potential effects, various proposals are of interest to local residents using Denali National Park and Preserve and have been facilitated by the relationships established through government-to-government consultation. Finally, the initial determination of effect noted here is dynamic and subject to change throughout this rulemaking process due to the ongoing nature of government-to-government consultation for the NPS areas in Alaska.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Drafting Information: The principal contributors to this proposed rule are: Peter Armington, Steve Carwile, Philip Hooge, and Joe Van Horn, Denali National Park and Preserve; Andee Sears and Paul Hunter, NPS Alaska Regional Office; and Jerry Case, Regulations Program Manager, NPS, Washington, DC.

You may submit comments online at: http://www.regulations.gov. Follow the instructions for submitting comments. You may also mail or hand deliver comments to: National Park Service, Regional Director, Alaska Regional Office, 240 West 5th Ave., Anchorage, AK 99501.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 13 as set forth below:

The USPTO withdraws its prior proposal to amend the Rules of Practice in Trademark Cases to shorten the deadline for filing a request for reconsideration of a final Office action and to mandate that such a request be filed through TEAS. The USPTO received comments about practical difficulties presented by the potentially shorter deadline, and has determined that, at this time, the benefits that would be achieved by the shortened deadline do not outweigh the objections expressed by some commenters.

Regarding the proposal to mandate filing through TEAS, the Office remains convinced that, as set forth in the previous notice, the filing of requests for reconsideration electronically, rather than on paper, promotes efficiency in processing the requests and, thereby, in the prosecution of the application. Paper-filed requests necessitate: (1) Manual scanning and uploading of the documents into the USPTO database, and (2) the creation of paper application file wrappers in which to store the original of the paper-filed request for those applications where all previous filings were through TEAS. In contrast, TEAS-filed requests are automatically uploaded into the USPTO database and require no manual scanning or creation of a file wrapper.

Paper-filed requests also introduce processing delays in addition to those described above. Many applicants simultaneously seek reconsideration of a final refusal and file an appeal to the Trademark Trial and Appeal Board (“TTAB”). Because the examining attorney loses jurisdiction over the application upon the filing of an appeal to the TTAB, this simultaneous pursuit of reconsideration and appeal necessitates a remand by the TTAB to the examining attorney for a decision on the request for reconsideration. Where the applicant has filed the request on paper, the application is often remanded to the examining attorney before the request has been received and/or uploaded into the USPTO database, and so is not immediately available for the examining attorney's review and consideration. Thus, filing through TEAS expedites the examining attorney's notice of and access to the request, shortens pendency, requires less manual processing, and is more cost efficient for the USPTO.

While not disputing the efficiencies achieved by TEAS-filing, some commenters indicated their desire to avoid filing through TEAS when the request for reconsideration would include voluminous attachments that the applicant must scan for submission through TEAS. As an initial matter, the USPTO notes that by the request for reconsideration stage, an applicant has already received at least one non-final action and, in response thereto, has had an opportunity to submit available evidence in support of registration. A request for reconsideration is not intended as an opportunity for an applicant to put forth evidence that could have been provided in response to an initial action. As such, a legitimate need to attach voluminous evidence to a request for reconsideration should only arise where significantly different evidence is included in the final action, which the applicant wishes to rebut.

In addition, the USPTO notes that most filers are able to scan even voluminous evidence, and file it electronically. Nonetheless, in an effort to provide customer service to those who prefer to file requests for reconsideration on paper and therefore shift to the USPTO the burden of scanning and storing the request and all attachments, the USPTO proposes to permit such paper-filing upon payment of a fee in the amount of $50. This fee for paper filing would cover the USPTO's added costs of processing a request for reconsideration filed on paper. No fee would be required for filing a request for reconsideration through TEAS. A TEAS Plus applicant who files a request for reconsideration on paper would also be responsible for the fee for the loss of TEAS Plus status pursuant to §§ 2.23(b) and 2.23(a)(1)(i).

References in this notice to “the Act,” “the Trademark Act,” or “the statute” refer to the Trademark Act of 1946, 15 U.S.C. 1051 et seq. , as amended.

The Office proposes to revise § 2.64(b) and § 2.6(a).

Executive Order 13132: This rule does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

Executive Order 12866: This rule has been determined not to be significant for purposes of Executive Order 12866 (Sept. 30, 1993).

Regulatory Flexibility Act: This supplemental notice proposes requiring a $50 fee for the filing of a request for reconsideration on paper. The USPTO estimates that approximately 3,685 of the estimated 33,500 requests for reconsideration filed annually will be filed on paper and will incur the $50 fee.

A request for reconsideration is an optional, rather than a mandatory, filing in the course of trademark prosecution. An applicant may therefore choose not to request reconsideration after a final action, and thereby avoid paying the $50 fee. Moreover, no fee will be required for a request for reconsideration filed through TEAS, so even where an applicant chooses to file a request for reconsideration, the applicant will not be required to pay the $50 fee if the applicant files electronically, rather than on paper.

Therefore, the changes proposed in this notice will not have a significant economic impact on a substantial number of small entities.

Paperwork Reduction Act: This supplemental notice of proposed rule making involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The collection of information involved in this notice was submitted to OMB for review in conjunction with the original notice of proposed rule making. That submission was pre-approved by OMB under OMB Control Number 0651-0050 on June 25, 2007.

This supplemental notice proposes to allow applicants to file their requests for reconsideration on paper, as well as electronically, with the addition of a $50 fee for a paper filing.

The current estimate remains the same for 33,500 requests for reconsideration filings per year. As a result of this supplemental notice, the USPTO estimates that 3,685 of the 33,500 requests for reconsideration will be filed in paper and will incur the $50 fee, for an estimated total burden increase of $184,250 per year. The agency believes that it will take the same amount of time to complete the request for reconsideration whether they are filed in paper or filed electronically, and therefore does not expect an increase in the burden hours as a result of this rule. The USPTO plans to submit to OMB the addition of the paper filings and the associated fee cost adjustment to the 0651-0050 collection at the final rule making stage.

The currently approved estimated annual reporting burden for OMB Control Number 0651-0050 Electronic Response to Office Action and Preliminary Amendment Forms is 117,400 responses, 19,958 burden hours, and $0 in annualized non-hour costs. The estimated time per response is 10 minutes. The time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection of information is included in the estimate. The collection is approved through April of 2009.

Comments are invited on: (1) Whether the collection of information is necessary for proper performance of the functions of the agency; (2) the accuracy of the agency's estimate of the burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information to respondents.

Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden, to the Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451 ( Attn: Cynthia C. Lynch), and to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503 ( Attn: Desk Officer for the Patent and Trademark Office).

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

Unfunded Mandates: The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments or the private sector.

For the reasons stated, 37 CFR part 2 is proposed to be amended as follows:

Throughout this document, “we,” “us,” and “our” refer to EPA.

EPA is proposing two actions for both the Philadelphia-Wilmington-Trenton, PA-NJ-DE-MD 1-hour ozone nonattainment area (hereafter “the Philadelphia area”) and the Metropolitan Washington, DC-MD-VA 1-hour ozone nonattainment area (hereafter “the Washington area”).

For the Philadelphia area, EPA is proposing to determine that this area attained the 1-hour ozone NAAQS by its attainment date, November 15, 2005. Because EPA is proposing to find that this area has attained the 1-hour ozone NAAQS by its applicable attainment date, we also propose to find that this area is not subject to the imposition of the section 185 penalty fees.

For the Washington area, EPA is proposing to determine that this area attained the 1-hour ozone NAAQS by its attainment date, November 15, 2005. Because EPA is proposing to find that this area has attained the 1-hour ozone NAAQS by its applicable attainment date, we also propose to find that this area is not subject to the imposition of the section 185 penalty fees.

Under Section 181(b)(2) of the CAA, EPA must determine whether ozone nonattainment areas have attained the ozone NAAQS by their attainment date. In the case of the Philadelphia and Washington areas these determinations are based upon air quality monitoring data for the 2003 through 2005 ozone seasons and must be based on the area's design value as of the attainment date. 1

This proposed determination of attainment is not a redesignation to attainment action for these severe areas. Nor is it a determination as to whether either the Philadelphia area or Washington area has continued to maintain attainment with the NAAQS after November 15, 2005.

The Philadelphia 1-hour severe ozone nonattainment area consists of: Cecil County, Maryland; Kent and New Castle Counties in Delaware; Burlington, Camden, Cumberland, Gloucester, Mercer, and Salem Counties in New Jersey; and, Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties in Pennsylvania.

The Washington 1-hour severe ozone nonattainment area consists of the District of Columbia (the District), a Northern Virginia portion (Arlington, Fairfax, Loudoun, Prince William, and Stafford Counties and the cities of Alexandria, Falls Church, Fairfax, Manassas, and Manassas Park), and Calvert, Charles, Frederick, Montgomery, and Prince George's Counties in Maryland.

When the CAA Amendments were enacted in 1990, each area of the country that was designated nonattainment for the 1-hour ozone NAAQS, including the Philadelphia and Washington areas, were classified by operation of law as marginal, moderate, serious, severe, or extreme depending on the severity of the area's air quality problem. See , CAA sections 107(d)(1)(C) and 181(a). The Philadelphia 1-hour zone nonattainment area was classified as “severe-15” with a statutory attainment date of November 15, 2005. See , 56 FR 56694, November 6, 1991. The Washington area was designated nonattainment and initially classified “serious” for the 1-hour ozone NAAQS pursuant to section 181(a) of the CAA, but was later reclassified as “severe-15” with a statutory attainment date of November 15, 2005, due to its failure to attain by the November 15, 1999 attainment date for serious areas. See , 56 FR 56694, November 6, 1991 and 68 FR 3410, January 24, 2003.

In an April 30, 2004 final rule (69 FR 23858), EPA designated and classified most areas of the country under the 8-hour ozone NAAQS promulgated in 40 CFR 50.10. On April 30, 2004, EPA also issued a final rule (69 FR 23951) entitled “Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 1” (Phase 1 Rule). Among other matters, this rule revoked the 1-hour ozone NAAQS in the Philadelphia and Washington areas (as well as most other areas of the country), effective June 15, 2005. See , 40 CFR 50.9(b); 69 FR at 23996; and 70 FR 44470, August 3, 2005. This Phase 1 Rule also set forth how anti-backsliding principles will ensure continued progress toward attainment of the 8-hour ozone NAAQS by identifying which 1-hour requirements remain applicable in an area after revocation of the 1-hour ozone NAAQS. Among the requirements not retained were the section 185 requirements for 1-hour severe or extreme nonattainment areas that fail to attain the 1-hour ozone NAAQS by the applicable 1-hour attainment date and the requirement to implement contingency measures for failure to attain the 1-hour ozone NAAQS by the applicable attainment date. See , 69 FR 23951, April 30, 2004, and 70 FR 30592, May 26, 2005.

On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit (the Court) vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). South Coast Air Quality Management Dist. v. EPA , 472 F.3d 882 (D.C. Cir. 2006). Subsequently, in South Coast Air Quality Management Dist. v. EPA , 489 F.3d 1295 (D.C. Cir. 2007), in response to several petitions for rehearing, the Court clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. With respect to the challenges to the anti-backsliding provisions of the rule, the Court vacated three provisions that would have allowed States to remove from the SIP or to not adopt three 1-hour obligations once the 1-hour ozone NAAQS was revoked: (1) Nonattainment area new source review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) section 185 requirement for 1-hour severe or extreme nonattainment areas that fail to attain the 1-hour ozone NAAQS by the 1-hour attainment date; and (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS or for failure to attain that NAAQS. The Court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes.

The provisions in 40 CFR 51.905(a)-(c) remain in effect and areas must continue to meet those anti-backsliding requirements. However, the three provisions noted previously, which are specified in 51.905(e), were vacated by the Court. As a result, States must continue to meet the obligations for 1-hour NSR; 1-hour contingency measures; and, for severe and extreme areas, the obligations related to the section 185 requirement. Currently, EPA is developing two proposed rules to address the Court's vacatur and remand with respect to these three requirements. We will address in this proposed rule how the 1-hour obligations that currently continue to apply under EPA's anti-backsliding rule (as interpreted by the Court) apply where EPA has made a determination that the area attained the 1-hour ozone NAAQS by its attainment date.

Section 185(a) of the CAA states that for a severe or extreme ozone nonattainment a State must collect fees on certain stationary sources of air pollution if the area “has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date.”

Although the 1-hour ozone NAAQS as promulgated in 40 CFR 50.9 includes no discussion of specific data handling conventions, our publicly articulated position and the approach long since universally adopted by the air quality management community is that the interpretation of the 1-hour ozone standard requires rounding ambient air quality data consistent with the stated level of the standard, which is 0.12 parts per million (ppm). 40 CFR 50.9(a) states that: “The level of the national 1-hour primary and secondary ambient air quality standards for ozone * * * is 0.12 parts per million. * * *. The standard is attained when the expected number of days per calendar year with maximum hourly average concentrations Pennsylvania 0.12 parts per million * * * is equal to or less than 1, as determined by appendix H to this part.”

We have clearly communicated the data handling conventions for the 1-hour ozone NAAQS in guidance documents. As early as 1979, EPA issued guidance that the level of our NAAQS dictates the number of significant figures to be used in determining whether the standard was exceeded. The stated level of the standard is taken as defining the number of significant figures to be used in comparisons with the standard. For example, a standard level of 0.12 ppm means that measurements are to be rounded to two decimal places (0.005 rounds up), and, therefore, 0.125 ppm is the smallest concentration value in excess of the level of the standard. See , “Guideline for the Interpretation of Ozone Air Quality Standards,” EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979. EPA has consistently applied the rounding convention in this 1979 guideline. For example, see , 68 FR 19106 at 19111, April 17, 2003; 68 FR 62041 at 62043, October 31, 2003; and, 69 FR 21717 at 21719, April 22, 2004.

Section 181(b)(2)(A) requires the Administrator to determine after the attainment date whether ozone nonattainment areas have attained the NAAQS. This provision states: “Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by the date.” Although section 181(b)(2)(A) states that the determination of attainment status be based on the area's “design value,” EPA interprets this provision generally to refer to EPA's methodology for determining attainment status. That is, EPA determines attainment status under the 1-hour ozone NAAQS on the basis of the annual average number of expected exceedances of the NAAQS over the 3-year period up to, and including, the attainment date. See , 60 FR 3349, January 17, 1995. See, also , “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 at 13506, April 16, 1992 (the “General Preamble”).

We will determine whether an area's air quality is meeting the NAAQS for purposes of sections 181(b)(2) based upon data that has been collected and quality-assured in accordance with 40 CFR part 58, and recorded in EPA's Air Quality System (AQS) database, (formerly known as the Aerometric Information Retrieval System (AIRS)).

The 1-hour ozone NAAQS is 0.12 ppm, not to be exceeded on average more than 1 day per year averaged over any 3-year period. See , 40 CFR 50.9 and appendix H to 40 CFR part 50. To account for missing data, the procedures found in appendix H to 40 CFR part 50 are used to adjust the actual number of monitored exceedances of the standard to yield the annual number of expected exceedances (“expected exceedance days”) at an air quality monitoring site. Under our policies, we determine if an area has attained the 1-hour ozone NAAQS by calculating, at each monitor, the average expected number of days over the standard per year (i.e., “average number of expected exceedance days”) during the applicable 3-year period. See , generally the General Preamble, 57 FR at 13506, April 16, 1992 and Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, EPA, to Regional Air Office Directors; “Procedures for Processing Bump Ups and Extensions for Marginal Ozone Nonattainment Areas,” February 3, 1994. While the latter is explicitly applicable only to marginal areas, the general procedures for evaluating attainment in terms of the average number of expected exceedance days during the applicable 3-year period in this memorandum apply regardless of the initial classification of an area because all findings of attainment are made pursuant to the same CAA requirements in section 181(b)(2).

As noted previously, the applicable attainment date under the 1-hour ozone NAAQS for both the Philadelphia and Washington areas was November 15, 2005. Under these requirements, for severe ozone nonattainment areas with a statutory attainment date of November 15, 2005, we have based our proposed determination of attainment of the 1-hour ozone NAAQS by the applicable attainment date on the average number of expected exceedance days per year for the period 2003 though 2005 to determine whether the area met its applicable attainment date under section 181 of the CAA. We have reviewed this data to determine the area's air quality status in accordance with 40 CFR 50.9, and EPA policy guidance as discussed in the preceding paragraphs and in the previous discussion on rounding conventions elsewhere in the is document.

From 2003 through 2005, ambient air quality for ozone was monitored on a continuous basis at 18 monitoring sites within the Philadelphia area and at 17 monitoring sites in the Washington area. As noted previously, the applicable attainment date for both the Philadelphia and Washington severe 1-hour ozone nonattainment areas was November 15, 2005. We are evaluating attainment based on the data from 2003 through 2005.

During the entire 2003 to 2005 period, 18 ozone monitoring stations in the Philadelphia area were in operation. One other monitor discontinued operations in 2003. 2 Table 1.A summarizes the ozone data collected at the 18 ozone monitoring stations during the 2003 to 2005 period and included in AQS for the Philadelphia area. This data has been quality assured and is recorded in AQS. The Philadelphia area States use the AQS as the permanent database to maintain its data and quality assure the data transfers and content for accuracy. We have used the established rounding conventions set forth in our guidance documents and regulations.

As shown in Table 1.A, the average number of expected exceedance days per year is less than or equal to 1.0 at all of the sites. Therefore, we propose to find that the Philadelphia area attained the 1-hour ozone NAAQS by November 15, 2005, which was the applicable attainment date under the 1-hour ozone NAAQS for this nonattainment area.

During the entire 2003 to 2005 period, there were 17 ozone monitoring stations in the Washington area were in operation. One other monitor had discontinued operations in 2003. 3 Table 1.B summarizes the ozone data collected at the ozone monitoring stations during the 2003 to 2005 period and included in AQS for the Washington area. This data has been quality assured and is recorded in AQS. The Washington area States use the AQS as the permanent database to maintain its data and quality assure the data transfers and content for accuracy. We have used the established rounding conventions set forth in our guidance documents and regulations.

As shown in Table 1.B, the average number of expected exceedance days per year is less than or equal to 1.0 at all of the sites. Therefore, we propose to find that the Washington area attained the 1-hour ozone NAAQS by November 15, 2005, which was the applicable attainment date under the 1-hour ozone NAAQS for this nonattainment area.

Because the area has attained the 1-hour ozone NAAQS by the applicable attainment date, the area is not subject to the requirement to implement contingency measures for failure to attain the 1-hour ozone NAAQS by its attainment date. Since the area has met its attainment deadline, even if the area subsequently lapses into nonattainment, it would not be required to implement the contingency measures for failure to attain the 1-hour ozone NAAQS by its attainment date.

If a severe or extreme 1-hour ozone nonattainment area attains by its 1-hour ozone attainment date, it would not be required to implement the section 185 penalty fees program. Section 185(a) of the CAA states that a severe or extreme ozone nonattainment must implement a program to impose fees on certain stationary sources of air pollution if the area “has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date.” Consequently, if such an area has attained the standard as of its applicable attainment date, even if it subsequently lapses into nonattainment, the area would not be required to implement the section 185 penalty fees program. Because EPA is proposing to find that the area has attained the 1-hour ozone NAAQS by its applicable attainment date, we also propose to find that the area is not subject to the imposition of the section 185 penalty fees.

Based upon EPA's review of the air quality data for the 3-year period 2003 to 2005, EPA is proposing to determine that the Philadelphia severe 1-hour ozone nonattainment area attained the 1-hour ozone NAAQS by the applicable attainment date of November 15, 2005. EPA also proposes to find that this area is not subject to the imposition of the section 185 penalty fees.

Based upon EPA's review of the air quality data for the 3-year period 2003 to 2005, EPA is proposing to determine that the Washington severe 1-hour ozone nonattainment area attained the 1-hour ozone NAAQS by the applicable attainment date of November 15, 2005. EPA also proposes to find that this area is not subject to the imposition of the section 185 penalty fees.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This proposed action merely proposes to find that an area has attained a previously-established NAAQS based on an objective review of measured air quality data and imposes no additional requirements. Accordingly, the Administrator certifies that this proposed 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 does not impose any additional enforceable duties, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have 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), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to determine that each of two areas has attained a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This rule does not involve establishment of technical standards, and 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. These proposed rules to determine that the Philadelphia and Washington severe zone nonattainment areas attained the 1-hour ozone NAAQS and are not required to impose section 185 penalty fees does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Regulated Entities. Entities potentially affected by this proposed action include, but are not limited to, the following:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the proposed rule. This table lists categories of entities that may have coal preparation plants regulated by this proposed rule. To determine whether your facility is regulated by the proposed rule, you should examine the applicability criteria in § 60.250 and the definitions in § 60.251. If you have any questions regarding the applicability of the proposed rule to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

WorldWide Web (WWW). Following the Administrator's signature, a copy of the proposed amendments will be posted on the Technology Transfer Network's (TTN) policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg . The TTN provides information and technology exchange in various areas of air pollution control.

Public Hearing. If a public hearing is requested, it will be held at 10 a.m. at the EPA Facility Complex in Research Triangle Park, North Carolina or at an alternate site nearby. Contact Mr. Christian Fellner at 919-541-4003 to request a hearing, to request to speak at a public hearing, to determine if a hearing will be held, or to determine the hearing location.

Outline. The information presented in this preamble is organized as follows:

New source performance standards (NSPS) implement CAA section 111(b) and are issued for categories of sources which have been identified as causing, or contributing significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare. The primary purpose of the NSPS are to help States attain and maintain ambient air quality by ensuring that the best demonstrated emission control technologies are installed as the industrial infrastructure is modernized. Since 1970, the NSPS have been successful in achieving long-term emissions reductions at numerous industries by assuring cost-effective controls are installed on new, reconstructed, and modified sources.

CAA section 111 requires that NSPS reflect the degree of emission limitation achievable through application of the best system of emissions reductions which (taking into consideration the cost of achieving such emissions reductions, any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. This level of control is commonly referred to as best demonstrated technology (BDT). CAA section 111(b)(1)(B) requires the EPA to periodically review and revise the standards of performance, as necessary, to reflect improvements in methods for reducing emissions.

The current NSPS for coal preparation plants are contained in 40 CFR part 60, subpart Y, and were promulgated in the Federal Register on January 15, 1976 (41 FR 2232). Subpart Y is applicable to facilities which process more than 181 megagrams (Mg) (200 tons) of coal per day that commenced construction, reconstruction, or modification after October 24, 1974. The first review of the Coal Preparation Plants NSPS was completed on April 14, 1981 (46 FR 21769). The second review of the Coal Preparation Plants NSPS was completed on April 03, 1989 (54 FR 13384). EPA did not make changes to the NSPS as a result of these reviews.

We are proposing to amend 40 CFR part 60, subpart Y, to revise emissions limits and monitoring requirements for affected facilities constructed, reconstructed, or modified after April 28, 2008 at coal preparation plants processing more than 181 Mg (200 tons) of coal per day. We are also proposing to add provisions to subpart Y to clarify procedures for monitoring opacity at facilities presently subject to subpart Y. A summary of the proposed substantive amendments is presented below.

Subpart Y presently applies to the following affected facilities located at coal preparation plants which process more than 181 Mg (200 tons) of coal per day: Thermal dryers, pneumatic coal-cleaning equipment (air tables), coal processing and conveying equipment (including breakers and crushers), coal storage systems, and transfer and loading systems. The terms “thermal dryer” and “pneumatic coal-cleaning equipment” are defined to include only facilities that process bituminous coal and “Coal storage system” is defined to exclude open storage piles. We are proposing not to amend the designation of affected facilities or the definitions of thermal dryer, pneumatic coal-cleaning equipment, coal processing and conveying equipment, coal storage system, or transfer and loading system.

For thermal dryers constructed, modified, or reconstructed after April 28, 2008, we are proposing to revise the PM emission limit to 0.046 grams per dry standard cubic meter (g/dscm) (0.020 grains per dry standard cubic foot (gr/dscf)). For pneumatic coal-cleaning equipment constructed, modified, or reconstructed after April 28, 2008, we are proposing to revise the PM emissions limit to 0.011 g/dscm (0.0050 gr/dscf) and the opacity limit to 5 percent. For coal processing and conveying equipment, coal storage systems, and transfer and loading systems that commenced construction, reconstruction, or modification after April 28, 2008, we are proposing to revise the opacity limit to 5 percent. Finally, for coal processing and conveying equipment, coal storage systems, and transfer and loading systems processing coals other than bituminous coals that commenced construction or reconstruction after April 28, 2008 or were modified after April 28, 2008 and are enclosed, we are proposing to require that all PM emissions be vented to a stack and that emissions from the stack meet a PM standard of 0.011 g/dscm (0.0050 gr/dscf).

We are proposing to clarify the procedures that should be used by sources covered by subpart Y to monitor opacity. We are also proposing to require owners/operators of thermal dryers and pneumatic coal-cleaning equipment constructed, modified, or reconstructed after April 28, 2008 to either install and operate a PM continuous emissions monitoring system (PM CEMS) or to conduct annual PM performance tests. In addition, we are proposing to require owners/operators of pneumatic coal-cleaning equipment or thermal dryers using fabric filters constructed, modified, or reconstructed after April 28, 2008 not using PM CEMS to install a bag leak detection system. Finally, we are proposing to eliminate the opacity limit for owners/operators of affected facilities that properly install and continuously operate a PM CEMS.

To monitor the opacity at coal processing and conveying equipment, coal storage systems, and transfer and loading systems constructed, modified, or reconstructed after April 28, 2008, owner/operators of affected facilities shall conduct EPA Test Method 22, Appendix A-7, 40 CFR part 60, observations each calendar month that the coal preparation plant operates. If the results of the Method 22 observations indicate the presence of visible emissions for more than 5 percent of the observation period, the owner/operator would be required to conduct an EPA Test Method 9, Appendix A-4 of 40 CFR part 60, performance test on that affected facility within 24 hours. The data from the Method 9 test would be compared to the applicable opacity limit.

Finally, we are proposing to add specific recordkeeping requirements to subpart Y that would require the owner/operator of an affected facility that commenced construction, reconstruction, or modification after April 28, 2008 to maintain a logbook that records the visual opacity observations, the amount of chemical stabilizer or water purchased to control PM emissions, and the amount and ranks of coal processed each month.

We are proposing to add a definition for a bag leak detection system. In addition, we are proposing to amend the definitions of bituminous coal and coal to include the most recent ASTM test procedures. Finally, for a venturi scrubber, liquid flow rate is a better indicator of performance then liquid pressure monitoring, and we are proposing to add flow rate monitoring as an alternative to pressure monitoring. These changes update the definitions sections and are only intended to clarify the monitoring provisions, but do not substantively change the standards that apply to sources constructed before April 28, 2008.

We reviewed air permits for coal handling/processing/preparation/cleaning (process type 90.011) in the RACT/BACT/LAER Clearinghouse (RBLC) clearinghouse to determine BDT for existing coal preparation plants. In this review, we did not identify any emerging pollution prevention measures or PM control technologies at coal mines, electric power plants, or other industrial facilities. Therefore, we assumed that the following PM controls can be used on thermal dryers and pneumatic coal-cleaning equipment: A centrifugal (cyclone) collector, followed by a venturi scrubber and fabric filter respectively. Based on this review, we also concluded that the following PM controls can be used at coal processing and conveying equipment, coal storage systems, and transfer and loading systems at coal preparation plants: Enclosures in conjunction with either wet or chemical suppression or venting to a fabric filter.

When developing the proposed standards, we concluded that it is appropriate to use a fuel-neutral approach. The fuel-neutral principle dictates that emission standards should be as neutral as possible between clean fuels (fuels that have inherently low emissions) and other fuels. We are proposing to adopt this approach in order to set a nationwide emission standard that can be achieved by all new facilities in this source category, including facilities that do not have long-term access to clean fuels at a reasonable cost. In addition, we have concluded that the most bituminous coal mines are located away from major population centers and are not connected to the natural gas distribution system and that the use of natural gas as the thermal dryer fuel is not an option. Therefore, we concluded that the thermal dryer limit should be based on the combustion of coal.

A review of EPA's RBLC database over the past decade indicated that three new permits have been granted for new and modified coal-fired thermal dryers located at coal mines. The first permit was granted to the Island Creek coal preparation plant to modify an existing thermal dryer. The other two permits were granted to the Buchanan coal preparation plant. One was to modify an existing thermal dryer, and the other was to construct a new thermal dryer. All three coal-fired thermal dryers have PM permit limits of 0.025 gr/dscf; however, the new thermal dryer was never constructed at the Buchanan unit. To gather additional data, EPA reviewed permits for thermal dryers built more than 10 years ago to identify permit conditions that were more stringent than the existing NSPS. One of the identified plants was Mettiki general coal preparation plant, which had a permit limit of 0.020 gr/dscf. EPA reviewed PM performance test from 2000 from the Metikki facility, 1997 data from the Island Creek facility, and PM and opacity performance test data from 2003 and 2006 from the modified Buchanan thermal dryer. The average PM performance test results were 0.013, 0.019, 0.020, and 0.018 gr/dscf, respectively. The maximum opacity readings for the 2003 and 2006 performance tests at the Buchanan plant were 10 and 20 percent, respectively. We selected 0.020 gr/dscf as the proposed PM limit because this level is currently being achieved by the thermal dryer located at the three facilities subject to the most stringent PM limits, and because we did not identify any emerging pollution prevention or emission control technologies. In addition, we have concluded that the existing opacity limit of 20 percent is appropriate since the opacity data from the Buchanan plant demonstrates that compliance with the PM mass emission limit is possible at an opacity of 20 percent and has decided not to revise the limit.

We are not proposing to set separate limits for condensable PM, PM2.5, or PM10 emissions. Based on AP-42 emission factors, condensable PM accounts for only approximately 1 percent of total PM emissions from a fluidized bed dryer. Based on AP-42 emissions factors, a high efficiency venturi scrubber controls 75 percent of condensable PM, and 99 percent of the total filterable PM. PM2.5 accounts for approximately 15 percent of filterable PM emissions from a fluidized bed dryer. Even though the collection efficiency for a venturi scrubber decreases with decreasing PM size, we have concluded that the improvements in design required to comply with the amended PM standard will result in 50 percent collection efficiency of submicron particles. Therefore, we concluded that setting a total filterable PM limit is sufficient. Further, at this time we do not have sufficient performance test data on condensable PM or PM2.5 emissions from thermal dryers to determine what limits would be reasonable. Finally, although we acknowledge that the addition of controls after the high efficiency venturi scrubber could result in lower condensable and PM2.5 emissions, we do not have any way to estimate the performance of such controls to conduct a cost analysis. Therefore we cannot conclude at this time that such controls would constitute the best demonstrated technology for this source category.

We are proposing to revise the PM and opacity limits that would apply to pneumatic coal-cleaning equipment constructed, modified, or reconstructed after April 28, 2008. A review of the RBLC database indicated that no new pneumatic coal-cleaning equipment has been permitted in the past decade. We concluded, however, that performance from baghouses on coal processing and conveying equipment, coal storage systems, and transfer and loading systems is representative of the performance that would be expected of new pneumatic coal-cleaning equipment. Therefore, we determined that the level of control that reflects the BDT for coal processing and conveying equipment, coal storage systems, and transfer and loading systems standards also reflects the BDT for pneumatic coal-cleaning equipment. The following section describes how the proposed PM and opacity standards for these affected facilities were developed.

To determine the best demonstrated technology for coal processing and conveying equipment, coal storage systems, and transfer and loading systems, we reviewed control measures currently in use at coal preparation plants to reduce emissions from coal processing and conveying equipment, coal storage systems, and transfer and loading systems. This review indicated that most new facilities use either partial or total enclosures in conjunction with either wet or chemical suppression or venting to a baghouse. However, no single PM control scheme works for all coal ranks throughout the country. Bituminous coals typically have high surface moisture contents and low uncontrolled PM emissions. Facilities currently utilizing bituminous coal typically use enclosures with either wet suppression or chemical suppression to control PM emissions from the various processing and handling operations at a coal preparation plant. Low rank coals (subbituminous and lignite) tend to have low surface moisture and higher uncontrolled PM emissions, but the use of wet suppression can significantly decrease the coal's heating value. In addition, water resources are often limited in the regions where low rank coals are processed. Consequently, facilities currently utilizing low rank coals typically use enclosures and controls other than wet suppression (e.g., chemical sprays, fogging systems, or venting to a fabric filter) to control PM emissions from the various processing and handling operations at a coal preparation plant.

We developed uncontrolled emission rates for coal processing and conveying equipment, coal storage systems, and transfer and loading systems using emissions information from three references (i.e., EPA's AP-42 emission factors, the CHEER workshop proceedings, and the Emission Estimation Technique Manual for Mining). We are not aware of any additional sources of information for uncontrolled emissions rates for these operations and, for the purposes of this analysis, we selected the uncontrolled emissions factor for each coal preparation operation based on the information contained in these references. We also selected default percent control efficiencies for different control devices based on information contained in these references. Using the default uncontrolled emission rates and the default control efficiencies, we determined the cost effectiveness of the various control options.

We developed six model coal preparation plants to evaluate the cost effectiveness of the control options. The model plants are located at a bituminous coal mine, a subbituminous coal mine, an electric utility steam generating unit, a coke production facility, a cement manufacturing facility, and an industrial site. For each model coal preparation plant, we compared the use of chemical suppressants to venting to a fabric filter because these are the options with the highest level of control. Based on an analysis of these model coal preparation plants, we drew the following conclusions regarding the BDT for affected facilities at these plants. Control technologies and costs, and therefore BDT, differ depending on the type of coal processed.

For coal preparation plants processing bituminous coal at end-user locations (the electric utility steam generating unit, the coke production facility, the cement manufacturing facility, and the industrial site), we concluded that requiring fabric filters instead of using chemical suppressants would result in an annual reduction of 7 tons of PM, but cost an additional $640,000 annually. In addition, the incremental benefit and cost of fabric filters at a bituminous mine compared to application of chemical suppressants is a reduction of an additional 33 tons of PM, but the annual cost is an additional $200,000. Due to these high costs, we concluded that fabric filters are not BDT for any coal preparation plant processing bituminous coal. Therefore, BDT for affected facilities at coal preparation plants processing bituminous coal is the use of enclosures and chemical suppression.

In contrast, for coal preparation plants processing coals other than bituminous coal (the subbituminous mine), we determined that fabric filters do constitute BDT. The high uncontrolled PM emissions of subbituminous coal results in higher chemical costs and more cost effective fabric filters. The cost of a baghouse is $580,000 less than the use of chemicals at a subbituminous mine; the higher control efficiency of fabric filters results in a 230 ton annual decrease in PM emissions. Therefore, since fabric filters provide the highest level of control and are cost effective, they are considered BDT. Lignite has similar uncontrolled PM emissions as subbituminous coal and fabric filters are also considered BDT for coal preparation plants processing lignite.

We determined that BDT for new and reconstructed coal preparation plants processing coals other than bituminous coal is enclosure of the affected facilities and venting of emissions through a stack equipped with fabric filters. However, for modified facilities, we determined that enclosure is not BDT. Modified facilities could face technical challenges due to the layout of existing equipment. Therefore, BDT for these facilities is enclosure and venting through a stack equipped with fabric filters only if the affected facility was already enclosed before the modification. For modified facilities at coal preparation plants processing coal other than bituminous coal that are not enclosed prior to the modification BDT is the use of chemical suppressants. A detailed explanation of the emission factors and cost analysis is available in the docket.

In addition, we analyzed whether it was appropriate to set a mass PM or an opacity standard for coal processing and conveying equipment, coal storage systems, and transfer and loading systems. As discussed above, we concluded that BDT was enclosure and venting to a stack equipped with fabric filters only for new or reconstructed affected facilities that process coals other than bituminous coals, and modified affected facilities that are enclosed and process coals other than bituminous coals. BDT for processing and conveying equipment, coal storage systems, and transfer and loading systems processing bituminous coal and unenclosed modified processing and conveying equipment, coal storage systems, and transfer and loading systems processing coals other than bituminous coal was determined to be enclosure and the use of chemical suppression. Because it is not technically difficult or economically prohibitive to measure both PM emissions and opacity from sources venting emissions through a stack, we concluded that it was appropriate to set both a PM and opacity standard for new or reconstructed affected facilities that process coals other than bituminous coals, and modified affected facilities that are enclosed and process coals other than bituminous coals. For all other coal processing and conveying equipment, coal storage systems, and transfer and loading systems, we concluded that, at this time, it is appropriate to continue to use only an opacity standard. While measuring emissions of uncontrolled and controlled fugitive PM emissions from coal preparation facilities is technically possible, due to economic limitations it is often not presently practicable to measure the mass of PM emissions for operations that are not vented to a stack. Therefore, we are not proposing to set a separate PM standard for these affected facilities.

To identify the opacity standard that reflects the degree of emission limitation achievable through the application of the best demonstrated technology, we reviewed the RBLC database for opacity conditions applied in permits for coal handling facilities. Thirty-eight permits had opacity conditions, all for baghouses. Five of these permit conditions repeat the existing NSPS limit of 20 percent opacity, 1 was at 10 percent, and the remaining 32 were at 5 percent opacity or less. Based on this, we concluded that 5 percent opacity is BDT for a baghouse at a coal preparation plant. To further evaluate the actual performance of fabric filters, we conducted a review of test reports collected in support of the subpart OOO (non-metallic mineral processing facilities) review. These data were recently collected for review of subpart OOO, 40 CFR part 60, and we concluded the results are representative of results that would be expected from baghouses located at coal preparation plants since the size distribution and total mass of PM emissions are similar. We found that the results from all 102 relevant opacity performance tests on baghouses from the review showed maximum opacity readings of 5 percent or less.

To determine the appropriate opacity for affected facilities that do not vent PM emissions through a stack, we reviewed 383 Method 9 performance tests on facilities processing non-metallic minerals and using wet suppression (water-mixed surfactant sprays) to control fugitive dust. Again, we concluded that this data is comparable to what could be expected from non-enclosed affected facilities at a coal preparation plant since the size distribution and total uncontrolled PM emissions are similar for affected facilities covered by both subparts. None of the performance tests resulted in any 6-minute opacity readings in excess of 10 percent, and 91 percent of the performance tests had opacity readings of 5 percent or less. Since the assumed BDT for coal preparation plants processing bituminous coal is the use of enclosures and chemical suppressants, which is superior to standard wet suppression technology, we have concluded that an opacity limit of 5 percent is appropriate for new, modified, and reconstructed coal processing equipment. Even though many of the opacity readings are zero, opacity is measured in 5 percent increments. If the observer sees anything at all the minimum opacity they can report is 5 percent. We have concluded that a zero opacity limit is not appropriate since then even the smallest amount of visible emissions for any period would be an excess emission.

We concluded that a PM limit of 0.011 g/dcsm (0.0050 gr/dcsf) reflects the degree of emission limitation achievable through the application of the BDT at new or reconstructed affected facilities that process coals other than bituminous coals, and modified affected facilities that are enclosed and process coals other than bituminous coals. To determine what PM limit would be achievable through the application of best demonstrated technology at affected facilities processing coals other than bituminous coal, we reviewed data from the RBLC over the past decade for permit conditions for recent baghouses at coal handling facilities. Twenty-four of the 47 baghouse permits that list the gr/dscf stack limit were at 0.0050 gr/dscf or less, 22 were between 0.0050 and 0.010 gr/dscf, and 1 was above 0.010 gr/dscf. Since the cost difference in designing a baghouse to meet either 0.010 or 0.0050 gr/dscf is insignificant and the majority of new permits require stack limits of 0.0050 gr/dscf, EPA concluded that 0.0050 gr/dscf is BDT for a baghouse at a coal preparation plant. To further evaluate the actual performance of fabric filters, we reviewed performance test data from baghouses installed at affected facilities subject to subpart OOO. These data were recently collected for review of subpart OOO, and we concluded the results are representative of results that would be expected from baghouses located at coal preparation plants. One important distinction is that the majority of baghouses that submitted performance test data for the subpart OOO review had design emissions rates of 0.010 gr/dscf or higher. Of the 143 performance test results, 71 percent had results of 0.0050 gr/dscf or less and 87 percent had results of 0.010 gr/dscf or less. Based on this review, we selected a PM limit of 0.0050 gr/dscf of filterable PM for new or reconstructed affected facilities that process coals other than bituminous coals, and modified affected facilities that are enclosed and process coals other than bituminous coals because it is achievable on a consistent basis for a baghouse designed to achieve 0.0050 gr/dscf. For the same reasons, we also determined that a PM limit of 0.0050 gr/dcsf represented the emissions limitation achievable through the application of BDT at new, modified, and reconstructed pneumatic coal-cleaning equipment. Even though some individual PM performance test results are less then 0.0050 gr/dscf, we have concluded that the permit limit and manufacturer guarantees have an appropriate compliance margin built in. A detailed analysis of the performance test data is available in the docket.

We concluded that there are insignificant condensable PM emissions from coal processing and conveying equipment, coal storage systems, and transfer and loading systems and, therefore, decided not to establish a separate PM limit for condensable PM emissions.

We also concluded that it was not appropriate to establish separate PM2.5 or PM10 limits. Based on AP-42 emission factors, PM10 accounts for approximately half of the total PM emissions from coal handling operations and PM2.5 accounts for approximately 7 percent. We have concluded that both fabric filters and chemical dust suppressants control PM equally across the size distribution, and setting an overall PM limit is sufficient to control both PM10 and PM2.5. Even if we were to set a PM10 or PM2.5 limit, it would not result in any environmental benefit, but would increase compliance costs due to testing and reporting requirements. In addition, we do not have sufficient performance test data to establish reasonable PM10 and PM2.5 limits that could be achieved on a consistent basis.

We have concluded that it is appropriate to eliminate the opacity limit for affected facilities that use a PM CEMS to monitor emissions. For affected facilities at coal preparation plants, a PM CEMS will give a more direct measurement of the pollutant of interest causing opacity at these facilities (i.e., filterable PM) and provide data in units of the standard. We are not proposing, however, to require all affected facilities to install a PM CEMS, and the opacity standard will continue to apply to all facilities without a PM CEMS. For those facilities that elect not to install PM CEMS, and for those emissions at a source that are not suitable for monitoring by PM CEMS, it is appropriate to retain the opacity standard.

For new thermal dryers and pneumatic coal-cleaning equipment for which a PM CEMS is not applied, we are requiring a bag leak detection system. Bag leak detection systems that are based on electromagnetic or other electric charge transfer measurement are sensitive to changes in PM concentration and mass emissions rates. These devices are suitable for detecting changes in PM emissions control that suggests potential compliance problems in need of attention well before significant deterioration in control device operation. Bag leak detection systems in most applications act as early detection alarms but do not provide a measure of actual PM emissions. For this reason, we are proposing to retain the opacity standard for sources applying a bag leak detection system.

For monitoring PM emissions from coal processing and conveying equipment, coal storage systems, and transfer and loading systems, we are proposing monthly Method 22 opacity tests. We recognize that there is currently no readily available practical technology for continuously monitoring opacity from sources that do not vent PM emissions to a stack. Method 22 requires an observer, not necessarily certified as a Method 9 observer, to monitor the subject process or area for any visible emissions (i.e., not zero). For a period of time, this observer records all instances and the duration of visible emissions. If the sum of the duration of periods of visible emissions exceeds five percent of the observation period, the source must conduct a Method 9 test to establish compliance with the opacity limit.

We are also proposing as an explicit alternative to Method 22 observations the use of a digital photographic technique for detecting visible emissions. The proposed rule references an EPA preliminary method entitled “Determination of Visible Emission Opacity from Stationary Sources Using Computer-Based Photographic Analysis Systems” found at http://www.epa.gov/tnn/emc/prelim/pre-008.pdf . For this option, the source owner prepares for approval a site-specific monitoring plan based on this technology.

To verify that proper inspections and maintenance procedures are followed, we have concluded that it is necessary for the owner/operator of an affected facility to maintain a logbook. Data in the logbook would include the dates and results of all visual emission observations, the amount of water and/or chemical stabilizer used each month to control PM emissions, and the amount of coal processed each month.

Existing affected facilities at coal preparation plants that are modified or reconstructed would be subject to the applicable proposed amendments. We have concluded that existing affected facilities that are reconstructed and units that are modified should be able to achieve the proposed limits. Therefore, we are not proposing any amendments to how a facility would conduct the modification and reconstruction analysis.

In setting the standards, the CAA requires EPA to consider alternative emission control approaches, taking into account the estimated costs and benefits, as well as energy, solid waste, and other effects. We request comment on whether we have identified the appropriate alternatives and whether the proposed standards adequately take into consideration the incremental effects in terms of emission reductions, energy, and other effects of these alternatives. We will consider the available information in developing the final rule.

The costs and environmental, energy, and economic impacts are expressed as incremental differences between the impacts of coal preparation facilities complying with the proposed amendments and the current common permitting authority requirements (i.e., baseline). We used permit data and raw material use data to determine that new coal preparation plants will be built at 2 bituminous mines, 2 subbituminous mines, 1 coke production plant, 6 utility plants, 10 cement manufacturing plants, and 1 industrial site over the next 5 years. However, the controls presently required by State permitting authorities are equivalent to what would be required by the proposed amendments, and the impacts of the proposed amendments will result in limited environmental benefit or increase in control costs over the next 5 years. Therefore, the primary impact resulting from the proposed amendments to subpart Y for coal preparation facilities is a slight increase in recordkeeping costs for new units subject to subpart Y.

Compliance with the proposed standards would potentially increase the quantity of coal dust collected by fabric filters over the baseline levels. Depending on the practices used at a given coal preparation plant site, the amended regulation would increase the amount of coal dust the company must dispose of as a solid waste either on-site or off-site. In addition, the use of tree resin emulsions and synthetic polymer emulsions as dust suppressants have minimal environmental impacts, but the use of salts and ligin products can have negative impacts on the environment. Repeated applications of salts may harm nearby vegetation, and ligin products have a high biological oxygen demand in aquatic systems and can lead to fish kills and increases in groundwater concentrations of iron, sulfur compounds, or other pollutants. No significant energy impacts, as measured relative to the regulatory baseline, are expected as a result of the proposed PM limits.

The analysis concludes minimal changes in prices and output for the industries affected by the final rule. The price increase for baseload electricity, cement prices, coke prices, and coal prices are insignificant.

We request comments on all aspects of the proposed amendments. All significant comments received will be considered in the development and selection of the final amendments and, if appropriate, we will publish a supplemental proposal. We specifically solicit comments on additional amendments that are under consideration. These potential amendments are described below.

BDT for Thermal Dryers. No new thermal dryers have been installed at bituminous coal mines in the past decade, but two new thermal dryers have been installed at metal production facilities in the past decade. Both of those thermal dryers are fueled by natural gas and use fabric filters to control PM emissions. However, we are not aware of a fabric filter that has been used on a thermal dryer located at a bituminous coal mine. We are requesting comment on whether the high dew point of coal-fired thermal dryer exhaust at bituminous mines could cause potential difficulties with the use of a fabric filter. If we determine that the use of fabric filters at thermal dryers located at bituminous coal mines would not pose any significant technical difficulties and would not be cost prohibitive, we will consider basing the revised PM standard for thermal dryers on the performance of a fabric filter instead of a venturi scrubber. In addition, we are requesting comment on whether the proposed standards for thermal dryers are adequate to control condensable PM, PM2.5, and PM10 or whether additional standards are needed to control these types of PM.

Alternate requirements for an owner or operator of coal processing and conveying equipment, coal storage systems, and coal transfer equipment. We are requesting comment on if it is appropriate to establish equipment specifications in addition to, as an alternate to, or in place of the opacity standard for affected facilities not venting emissions to a stack. Affected facilities using chemical suppression or an equivalent dust control application typically do not emit through a conveyance designed to capture the PM emissions. In addition, it may not be practical to measure the mass of actual PM emissions from these facilities and work practice standards might be more appropriate.

Expanded coverage. We are requesting comment on expanding the coverage to include open storage piles by changing the definition of coal storage system. The Coal Handling Emissions Evaluation Roundtable (CHEER) workshop proceedings provide default control efficiencies for different technologies. We are requesting comment on the reliability and validity of these default control efficiencies. We have not developed cost estimates for some of these technologies. Also, we do not presently have information relating different control techniques to specific opacity limits and appropriate monitoring requirements. We request comment on both of these issues. If we were to expand the coverage to include open storage piles, work practice standards might be more appropriate than opacity limits. Our current understanding is that it is difficult to control opacity from open storage piles that are being actively worked at all times, and State permitting authorities often use opacity of open storage piles as an indication that a work practice is required as opposed to a strict limit.

Nonmetallic minerals processing . We are requesting comment on if it is appropriate to allow owners and operators of a facility processing nonmetallic minerals (as defined by subpart OOO) along with coal at the same property the option of being exempt from the requirements of subpart OOO as long as the nonmetallic mineral(s) is treated as coal for the purposes of compliance with subpart Y. Steam generating units with SO 2 scrubbers and cement manufacturers process limestone along with coal and consolidating the recordkeeping and reporting requirements to a single rule could lower the compliance burden for these facilities while still providing equivalent protection for the environment.

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the EO. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866, and any changes made in response to OMB recommendations have been documented in the docket for this action.

The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act , 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document prepared by EPA has been assigned EPA ICR number 1062.10.

These proposed amendments to the existing standards of performance for Coal Preparation Plants would add new monitoring, reporting, and recordkeeping requirements. The information would be used by EPA to ensure that any new affected facilities comply with the emission limits and other requirements. Records and reports would be necessary to enable EPA or States to identify new affected facilities that may not be in compliance with the requirements. Based on reported information, EPA would decide which units and what records or processes should be inspected.

These proposed amendments would not require any notifications or reports beyond those required by the General Provisions. The recordkeeping requirements require only the specific information needed to determine compliance. These recordkeeping and reporting requirements are specifically authorized by CAA section 114 (42 U.S.C. 7414). All information submitted to EPA for which a claim of confidentially is made will be safeguarded according to EPA policies in 40 CFR part 2, subpart B, Confidentially of Business Information.

The annual monitoring, reporting, and recordkeeping burden for this collection averaged over the first 3 years of this ICR is estimated to total 32,664 labor hours per year at an average annual cost of $2,957,707. This estimate includes performance testing, excess emission reports, notifications, and recordkeeping. There are no capital/start-up costs or operational and maintenance costs associated with the monitoring requirements over the 3-year period of the ICR. Burden is defined at 5 CFR 1320.3(b).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a current valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-2008-0260. Submit any comments related to the ICR to EPA and OMB. See ADDRESSES section at the beginning of the notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after April 28, 2008, a comment to OMB is best assured of having its full effect if OMB receives it by May 28, 2008. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of the proposed amendments on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities.

We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under UMRA section 202, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, UMRA section 205 generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under UMRA section 203 a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that the proposed amendments contain no Federal mandates that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The total annual control and monitoring costs of the proposed amendments, compared to a baseline of no control, at year five is $2 million. Thus, the proposed amendments are not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that the proposed amendments contain no regulatory requirements that might significantly or uniquely affect small governments because the burden is small and the regulation does not unfairly apply to small governments. Therefore, the proposed amendments are not subject to the requirements of UMRA section 203.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the EO to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

These proposed amendments do not have federalism implications. They will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in EO 13132. These proposed amendments will not impose substantial direct compliance costs on State or local governments; they will not preempt State law. Thus, EO 13132 does not apply to these proposed amendments. In the spirit of EO 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on these proposed amendments from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” These proposed amendments do not have tribal implications, as specified in EO 13175. We are not aware of any coal preparation facilities owned by an Indian tribe. Thus, EO 13175 does not apply to these proposed amendments. EPA specifically solicits additional comment on these proposed amendments from tribal officials.

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This proposed action is not subject to EO 13045 because it is based solely on technology performance.

This proposed action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this proposed action is not likely to have any adverse energy effects.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113 (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking involves technical standards. EPA has decided to use ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses,” for its manual methods of measuring the oxygen or carbon dioxide content of the exhaust gas. These parts of ASME PTC 19.10-1981 are acceptable alternatives to EPA Method 3B. This standard is available from the American Society of Mechanical Engineers (ASME), Three Park Avenue, New York, NY 10016-5990.

The EPA has also decided to use EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, 5, 5D, 9 (40 CFR part 60, appendices A-1 through A-4), or 22 (40 CFR part 60, appendix A-7); and Performance Specification 11 (40 CFR part 60, appendix B). While the Agency has identified 13 VCS as being potentially applicable to these methods cited in this rule, we have decided not to use these standards in this proposed rulemaking. The use of these VCS would have been impractical because they do not meet the objectives of the standards cited in this rule. The search and review results are in the docket for this rule.

Under 40 CFR 60.13(i) of the NSPS General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in the final rule and amendments. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this proposed action.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practical and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high adverse human health or environmental effects on any populations, including any minority or low-income population. The proposed amendments would assure that all new coal preparation plants install appropriate controls to limit health impacts to nearby populations.

For the reasons stated in the preamble, title 40, chapter I, part 60, of the Code of the Federal Regulations is proposed to be amended as follows:

In a companion notice of proposed rulemaking (NPRM), NHTSA is proposing Corporate Average Fuel Economy (CAFE) standards for model year (MY) 2011-2015 passenger cars and light trucks pursuant to the amendments made by the Energy Independence and Security Act of 2007 (EISA) to the Energy Policy and Conservation Act (EPCA). 1 In connection with this action, NHTSA has begun preparing an Environmental Impact Statement (EIS) to address the potential environmental impacts of the proposed standards and reasonable alternative standards in the context of NHTSA's CAFE program pursuant to the National Environmental Policy Act (NEPA) and implementing regulations issued by the Council on Environmental Quality (CEQ) and NHTSA. 2 NEPA instructs Federal agencies to consider the potential environmental impacts of their proposed actions and possible alternatives in their decisionmaking. To inform decisionmakers and the public, the EIS will compare the environmental impacts of the agency's proposal and reasonable alternatives, including a “no action” alternative. The EIS will consider direct, indirect, and cumulative impacts and should discuss impacts “in proportion to their significance.”

In March 2008, NHTSA issued a notice of intent to prepare an EIS for the MY 2011-2015 CAFE standards and opened the NEPA “scoping” process. In that notice, NHTSA described the statutory requirements for the proposed standards, provided initial information about the NEPA process, and initiated scoping by requesting public input on the scope of NHTSA's NEPA analysis for the proposed standards. 3 NHTSA also stated that it would describe the proposed standards and the possible alternatives NHTSA expects to consider for purposes of its NEPA analysis in its NPRM and in a separate scoping notice that would provide further guidance about the scoping process. This document constitutes that supplemental scoping notice.

Background. EPCA sets forth extensive requirements concerning the rulemaking to establish MY 2011-2015 CAFE standards. It requires the Secretary of Transportation 4 to establish average fuel economy standards at least 18 months before the beginning of each model year and to set them at “the maximum feasible average fuel economy level that the Secretary decides the manufacturers can achieve in that model year.” When setting “maximum feasible” fuel economy standards, the Secretary is required to “consider technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy.” 5 NHTSA construes the statutory factors as including environmental and safety considerations. 6 NHTSA also will consider environmental impacts under NEPA when setting CAFE standards.

As recently amended, EPCA further directs the Secretary, after consultation with the Secretary of Energy (DOE) and the Administrator of the Environmental Protection Agency (EPA), to establish separate average fuel economy standards for passenger cars and for light trucks manufactured in each model year beginning with model year 2011 “to achieve a combined fuel economy average for model year 2020 of at least 35 miles per gallon for the total fleet of passenger and non-passenger automobiles manufactured for sale in the United States for that model year.” 7 In doing so, the Secretary of Transportation is required to increase average fuel economy standards for MY 2011-2020 vehicles through “annual fuel economy standard increases.” 8 The standards for passenger cars and light trucks must be “based on 1 or more vehicle attributes related to fuel economy.” In any single rulemaking, standards may be established for not more than five model years. 9 EPCA also mandates a minimum standard for domestically manufactured passenger cars. 10

Earlier this year, NHTSA initiated the EIS process for MY 2011-2015 CAFE standards, which include light truck standards for one model year previously covered by the 2006 Rule (MY 2011). 11 We did so because a standard for MY 2011 must be issued by the end of March 2009 and achieving an industry-wide combined fleet average of at least 35 miles per gallon for MY 2020 depends, in substantial part, upon setting standards well in advance so as to provide the automobile manufacturers with as much lead time as possible to make the extensive necessary changes to their automobiles.

The Proposed Action and Possible Alternatives: NHTSA's companion NPRM proposes attribute-based (vehicle size) fuel economy standards for passenger cars and light trucks consistent with the “Reformed CAFE” approach NHTSA used to establish standards for MY 2008-2011 light trucks. 12 The NPRM proposes separate standards for MY 2011-2015 passenger cars and separate standards for MY 2011-2015 light trucks. This notice briefly describes the proposed standards and the possible alternatives discussed in the NPRM. For more detailed discussion of those alternatives, please see the NPRM.

Under the proposed standards, each vehicle manufacturer's required level of CAFE would be based on target levels of average fuel economy set for vehicles of different sizes and on the distribution of that manufacturer's vehicles among those sizes. Size would be defined by vehicle footprint. 13 The level of the performance target for each footprint would reflect the technological and economic capabilities of the industry. The target for each footprint would be the same for all manufacturers, regardless of differences in their overall fleet mix. Compliance would be determined by comparing a manufacturer's harmonically averaged fleet fuel economy levels in a model year with a required fuel economy level calculated using the manufacturer's actual production levels and the targets for each footprint of the vehicles that it produces.

In developing the proposed standards and possible alternatives, NHTSA considered the four EPCA factors underlying maximum feasibility (technological feasibility, economic practicability, the effect of other standards of the Government on fuel economy, and the need of the nation to conserve energy) as well as relevant environmental and safety considerations. NHTSA used a computer model (known as the “Volpe model”) that, for any given model year, applies technologies to a manufacturer's fleet until the manufacturer achieves compliance with the standard under consideration. In light of the EPCA factors, the agency placed monetary values on relevant externalities (both energy security and environmental externalities, including the benefits of reductions in carbon dioxide (CO 2 ) emissions). As discussed in the NPRM, NHTSA also consulted with EPA and DOE regarding a wide variety of matters.

After assessing what fuel saving technologies would be available, how effective they are, and how quickly they could be introduced, NHTSA balanced the EPCA factors relevant to standard-setting. The agency used a marginal benefit-cost analysis to set the proposed standards at levels such that, considering the seven largest manufacturers, the cost of the last technology application equaled the benefits of the improvement in fuel economy resulting from that application. That is the level at which net benefits are maximized. Accordingly, NHTSA refers to the proposed standards as “optimized” standards or the “optimized scenario”. In considering further action on the proposed standards and reasonable alternatives, NHTSA will consider the NEPA analysis that results from the scoping process described in this notice.

NHTSA projects what the industry-wide average fuel economy level would be for passenger cars and for light trucks if each manufacturer produced its expected mix of automobiles and exactly met its obligations under the proposed “optimized” standards for each model year. For passenger cars, the average fuel economy (in miles per gallon, or mpg) would range from 31.2 mpg in MY 2011 to 35.7 mpg in MY 2015. For light trucks, the average fuel economy would range from 25.0 mpg in MY 2011 to 28.6 mpg in MY 2015. The combined industry-wide average fuel economy for all passenger cars and light trucks would range from 27.8 mpg in MY 2011 to 31.6 mpg in MY 2015, if each manufacturer exactly met its obligations under the standards proposed in the NPRM. 14

Under the proposed standards, the annual average increase during the five-year period from MY 2011-MY 2015 would be approximately 4.5 percent. The annual percentage increases would be greater in the early years due to the uneven distribution of new model introductions during this period and to the fact that significant technological changes can be most readily made in conjunction with those introductions. 15 Pursuant to EISA's mandate, domestically manufactured passenger car fleets also must meet an alternative minimum standard for each model year. The alternative minimum standard would range from 28.7 mpg in MY 2011 to 32.9 mpg in MY 2015 under NHTSA's proposal.

In addition to the proposed standards, NHTSA has considered several regulatory alternatives for purposes of Executive Order 12,866. 16 NHTSA anticipates that those alternatives, plus a “no action” alternative as required by NEPA, will form the framework of the agency's alternatives analysis under NEPA. The alternatives, in order of increasing stringency, are:

(1) A “no action” alternative of maintaining CAFE standards at the MY 2010 levels of 27.5 mpg and 23.5 mpg for passenger cars and light trucks, respectively. 17 NEPA requires agencies to consider a “no action” alternative in their NEPA analyses, although the recent amendments to EPCA direct NHTSA to set new CAFE standards and do not permit the agency to take no action on fuel economy. (NHTSA also refers to this “no action” alternative as a “no increase” or “baseline” alternative.)

(2) An alternative reflecting standards that fall below the optimized scenario by the same absolute amount by which the “25 percent above optimized alternative” (described below) exceeds the optimized scenario. NHTSA refers to this as the “25 percent below optimized alternative”.

(3) An alternative reflecting the “optimized scenario,” the proposed standards based on applying technologies until net benefits are maximized.

(4) An alternative reflecting standards that exceed the optimized scenario by 25 percent of the interval between the optimized scenario and an alternative (described below) based on applying technologies until total costs equal total benefits. NHTSA refers to this alternative as the “25 percent above optimized alternative.”

(5) An alternative reflecting standards that exceed the optimized scenario by 50 percent of the interval between the optimized scenario and the alternative based on applying technologies until total costs equal total benefits. This alternative is known as the “50 percent above optimized alternative”.

(6) An alternative reflecting standards based on applying technologies until total costs equal total benefits (zero net benefits). This is known as the “TC=TB alternative”.

(7) A “technology exhaustion alternative” in which NHTSA applied all feasible technologies without regard to cost by determining the stringency at which a reformed CAFE standard would require every manufacturer to apply every technology estimated to be potentially available for its MY 2011-2015 fleet. Accordingly, the penetration rates for particular technologies would vary on an individual manufacturer basis. NHTSA has presented this alternative in order to explore how the stringency of standards would vary based solely on the potential availability of technologies at the individual manufacturer level.

Under NEPA, the purpose of and need for an agency's action inform the range of reasonable alternatives to be considered in its NEPA analysis. 18 NHTSA believes that these alternatives represent a reasonable range of stringencies to consider for purposes of evaluating the potential environmental impacts of proposed CAFE standards under NEPA, because these alternatives represent a wide spectrum of potential impacts ranging from the current standards to standards based on the maximum technology expected to be available over the period necessary to meet the statutory goals of EPCA, as amended by EISA. 19 However, as discussed in the NPRM, NHTSA's provisional analysis of these alternatives suggests that some of them may not satisfy the four EPCA factors that NHTSA must apply in setting “maximum feasible” CAFE standards ( i.e. , technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the nation to conserve energy). Please see the companion NPRM for further discussion of these alternatives and for background on why NHTSA has identified these alternatives. As indicated below, NHTSA invites comments to ensure that the agency's NEPA analysis for the proposed standards addresses a full range of reasonable alternatives and identifies all potentially significant impacts related to each. Comments may go beyond the approaches and information that NHTSA used in developing the proposed standards and the above alternatives.

Scoping and Public Participation: As NHTSA indicated in its notice of intent and request for scoping comments, NHTSA plans to use the scoping process to determine “the range of actions, alternatives, and impacts to be considered” in the EIS and to identify the most important issues for analysis. 20 NHTSA's NEPA analysis for the MY 2011-2015 CAFE standards will consider the direct, indirect and cumulative environmental impacts of the proposed standards and those of reasonable alternatives. Among other potential impacts, NHTSA will consider direct and indirect impacts related to fuel and energy use, emissions including CO2 and their effects on temperature and climate change, air quality, natural resources, and the human environment. NHTSA also will consider the cumulative impacts of the proposed standards for MY 2011-2015 automobiles together with estimated impacts of NHTSA's implementation of the CAFE program through MY 2010 and NHTSA's future CAFE rulemaking for MY 2016-2020, as prescribed by EPCA, as amended by EISA. To this end, NHTSA will project the future effects of the fuel use and emissions of the vehicle fleets analyzed over their lifetimes.

NHTSA anticipates considerable uncertainty in estimating and comparing the potential environmental impacts of the proposed standards and the alternatives relating to climate change in particular. For instance, it may be difficult to predict with a reasonable degree of certainty or accuracy the range of potential global temperature changes that may result from changes in fuel and energy consumption and CO 2 emissions due to new CAFE standards. In turn, for example, it may be difficult to predict and compare the ways in which potential temperature changes attributable to new CAFE standards may impact many aspects of the environment. Accordingly, NHTSA expects to apply the provisions in the CEQ regulations addressing “[i]ncomplete or unavailable information,” where NHTSA would acknowledge these and other uncertainties in its NEPA analysis for the proposed standards. 21 NHTSA will rely on the 2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) as a recent “summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment.”  22 The NHTSA NEPA analysis and documentation will incorporate material by reference “when the effect will be to cut down on bulk without impeding agency and public review of the action.”  23

In preparing this supplemental notice of public scoping, NHTSA has consulted with CEQ, EPA, and the Office of Management and Budget. Through this notice, NHTSA again invites other Federal agencies and State, local, and tribal agencies with jurisdiction by law or special expertise with respect to potential environmental impacts of the proposed CAFE standards and the public to participate in the scoping process. 24

Specifically, NHTSA invites all stakeholders to submit written comments concerning the appropriate scope of NHTSA's NEPA analysis for the proposed CAFE standards for MY 2011-2015 passenger cars and light trucks to the docket number identified in the heading of this notice using any of the methods described in the ADDRESSES section of this notice. NHTSA does not plan to hold a public scoping meeting, because written comments will be effective in identifying and narrowing the issues for analysis and because the rulemaking schedule necessary to meet the new statutory requirements is tight. However, NHTSA is especially interested in comments that address the potential impacts of NHTSA's proposed CAFE standards and reasonable alternatives relating to climate change. Specifically, NHTSA requests:

• Peer-reviewed scientific studies that have been issued since the IPCC's Fourth Assessment Report (and are not reflected in the IPCC's work through November 17, 2007) and that address: (a) The impacts of CO 2 and other greenhouse gas emissions on temperature, and specifically, the temperature changes likely to result from the proposed standards or the alternatives; (b) the impacts of changes in temperature on the environment, including water resources and biological resources, and human health and welfare; or (c) the time periods over which such impacts may occur.

• Comments on how NHTSA should estimate the potential changes in temperature that may result from the changes in CO 2 emissions projected from the proposed standards and reasonable alternatives, and comments on how NHTSA should estimate the potential impacts of temperature changes on the environment.

• Reports prepared by or on behalf of States, local governments, Indian tribes, regional organizations, or academic researchers analyzing the potential impacts of climate change in particular geographic areas of the United States.

• Comments on other reasonable alternatives that NHTSA might consider in its NEPA analysis that fit within the purpose and need for the proposed rulemaking, as set forth in EPCA, as amended by EISA. When suggesting a possible alternative, please explain how it would satisfy each of the EPCA factors (namely, technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the nation to conserve energy) and requirements (such as achieving a combined fleet average fuel economy of at least 35 miles per gallon for MY 2020) and give effect to NEPA's policies.

In addition, NHTSA requests comments on how the agency should assess cumulative impacts, including those from various emissions source categories and from a range of geographic locations.

Two important purposes of scoping are identifying the significant issues that merit in-depth analysis in the EIS and identifying and eliminating from detailed analysis the issues that are not significant and therefore require only a brief discussion in the EIS. 25 In light of these purposes, written comments should include an Internet citation (with a date last visited) to each study or report you cite in your comments if one is available. If a document you cite is not available to the public on-line, you should attach a copy to your comments. Your comments should indicate how each document you cite in or attach to your comments is relevant to NHTSA's NEPA analysis and indicate the specific pages and passages in the attachment that are most informative.

The more specific your comments are, and the more support you can provide by directing the agency to peer-reviewed scientific studies and reports as requested above, the more useful your comments will be to the agency. For example, if you identify an additional area of impact or environmental concern you believe NHTSA should analyze, you should clearly describe it and support your comments with a reference to a specific peer-reviewed scientific study or report. Specific, well-supported comments will facilitate the purposes of scoping identified above and will serve NEPA's overarching aims of making high quality information available to decisionmakers and the public and generating NEPA documents that “concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.”  26 By contrast, mere assertions that the agency should evaluate broad lists or categories of concerns, without support, will not help NHTSA focus its NEPA analysis for the proposed standards through scoping.

Please be sure to reference the docket number identified in the heading of this notice in your comments. In addition, please provide a mailing address and indicate whether you want to receive notice of the publication of the NEPA documents with a copy of the executive summary and one of the following: (a) A url to access the document on the Internet; (b) a CD readable on a personal computer; or (c) a printed copy of the entire document. These steps will help NHTSA to manage a large volume of material during the NEPA process. All comments and materials received, including the names and addresses of the commenters who submit them, will become part of the administrative record and will be posted on the Web at http://www.nhtsa.dot.gov .

Based on comments received during scoping, NHTSA expects to prepare a draft EIS for public comment later this spring and a final EIS to support a final rule later this year. Separate Federal Register notices will announce the availability of the draft EIS, which will be available for public comment, and the final EIS, which will be available for public inspection. NHTSA also plans to continue to post information about the NEPA process and this CAFE rulemaking on its Web site ( http://www.nhtsa.dot.gov ).