The Commission issued a Notice of Proposed Rulemaking (“NPRM”) proposing to eliminate from its regulations at 11 CFR 300.32(c)(4) an exemption that had allowed State, district, and local committees of a political party  1 to pay for certain types of Federal election activity (“FEA”)  2 aggregating $5,000 or less in a calendar year entirely with Levin funds  3 (“$5,000 Exemption”). The NPRM also requested comments on the possibility of creating a new, restructured exemption. The NPRM was published in the Federal Register on February 2, 2005. 70 FR 5385 (February 2, 2005). The comment period closed on March 4, 2005. The Commission received five comments from ten commenters on the proposed rules. 4 Eight commenters favored elimination of the $5,000 Exemption and one commenter favored maintaining the $5,000 Exemption. Additionally, the Commission received a comment from the Internal Revenue Service, indicating “the proposed rules do not pose a conflict with the Internal Revenue Code or the regulations thereunder.” The Commission is issuing final rules eliminating the $5,000 Exemption and is declining to adopt a restructured exemption.

Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final rules to the Speaker of the House of Representatives and the President of the Senate and publish them in the Federal Register at least 30 calendar days before they take effect. The final rule that follows was transmitted to Congress on November 10, 2005.

The Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. 107-155, 116 Stat. 81 (2002), amended the Federal Election Campaign Act of 1971 (the “Act”), 2 U.S.C. 431 et seq. , in many respects. Section 441i(b)(1) of the Act, as added by BCRA, provides that State, district, and local political party committees generally must use Federal funds  5 to pay for FEA. However, the Levin Amendment (2 U.S.C. 441i(b)(2)) provides an exception for two types of FEA, for which State, district, and local political party committees may allocate disbursements between Federal funds and Levin funds in accordance with allocation ratios determined by the Commission. 2 U.S.C. 441i(b)(2); see also 11 CFR 300.2(i), 300.32, and 300.33. Types 1 and 2 FEA, which involve certain voter registration, get-out-the-vote, voter identification, and generic campaign activity, are allocable between Federal and Levin funds, so long as the activities do not refer to a clearly identified Federal candidate (“allocable Type 1&2 FEA”). See 2 U.S.C. 441i(b)(2)(B)(i) and 11 CFR 300.32(c).

In 2002, the Commission promulgated regulations at 11 CFR Part 300 implementing BCRA. See Final Rules and Explanation and Justification for Prohibited and Excessive Contributions; Non-Federal Funds or Soft Money, 67 FR 49064 (July 29, 2002). Specifically, 11 CFR 300.32(c)(4) required any State, district, or local committee or organization of a political party that disburses more than $5,000 for allocable Type 1&2 FEA in a calendar year either to pay for such allocable FEA entirely with Federal funds or to allocate the disbursements between Federal funds and Levin funds. The same provision also created a “ de minimis exemption” for any State, district, or local party committee or organization whose disbursements for allocable Type 1&2 FEA aggregate $5,000 or less in a calendar year, thereby permitting such party committees and organizations to pay for these expenses entirely with Levin funds.

The $5,000 Exemption was one of several regulations at issue in Shays v. FEC , 337 F.Supp.2d 28 (D.D.C. 2004) (“ Shays District ”), aff'd, 414 F.3d 76 (D.C. Cir. July 15, 2005) (“ Shays Appeal ”), reh'g en banc denied (October 21, 2005) (No. 04-5352). The District Court in Shays District held that the $5,000 Exemption in 11 CFR 300.32(c)(4) was inconsistent with Congress's intent, as expressed in BCRA, to require State, district, and local party committees to pay for allocable Type 1&2 FEA either solely with Federal funds or with an allocated mix of Federal funds and Levin funds. Shays District at 114-17.

The Commission appealed the District Court's ruling regarding several of its regulations, including 11 CFR 300.32(c)(4). On July 15, 2005, the Court of Appeals for the D.C. Circuit affirmed the District Court's invalidation of the $5,000 Exemption. Shays Appeal at 115. In affirming the District Court's invalidation of the $5,000 Exemption, the Court of Appeals concluded that the Commission had failed to establish that the $5,000 Exemption was “in fact de minimis .” Shays Appeal at 114. The Court of Appeals also concluded that because Congress had exercised its judgment in enacting the Levin Amendment, “Congress's rationale for including activities in the Levin Amendment obviously affords no justification for excluding them from Levin allocation, the very form of regulation Congress chose.” Id. (emphasis in original).

The NPRM proposed to eliminate entirely the $5,000 Exemption in 11 CFR 300.32(c)(4). In response to the NPRM, eight commenters urged the Commission to eliminate the $5,000 Exemption altogether. These commenters stated that BCRA was clear on its face and argued that the Levin Amendment itself reflected Congress's narrowly-drawn exception allowing State, district, and local party committees to use only Federal funds or to allocate between Federal and Levin funds for allocable Type 1&2 FEA. Four of the commenters noted that the Levin Amendment was, itself, a compromise reached during Congressional deliberation. These commenters asserted that Congress had contemplated that Levin funds always would be used in combination with Federal funds for allocable Type 1&2 FEA, recognizing that FEA activities influence Federal elections.

On the other hand, one commenter favored retaining the $5,000 Exemption, stating that the exemption did not undermine Congressional intent. Specifically, this commenter asserted that absent the $5,000 Exemption, a strict application of the Levin Amendment would lead to suppression of “local grassroots activity in favor of non-party or large institutional party activity” and that this was “an unlikely objective” for Congress.

1. Elimination of the Current $5,000 Exemption. In light of the conclusions reached by the Court of Appeals in Shays Appeal , which precluded retaining the current rule, the Commission has decided to eliminate the $5,000 Exemption from paragraph (c)(4) of section 300.32. Thus, revised paragraph (c)(4) requires State, district, and local committees and organizations of political parties to pay for all allocable Type 1&2 FEA either entirely with Federal funds or with an allocated mix of Federal funds and Levin funds, without regard to the total amount of their annual disbursements. The wording of revised 11 CFR 300.32(c)(4) also includes a conforming revision that replaces the word “may” with “must” to reflect unambiguously that State, district, and local party committees and organizations must choose between paying for such expenditures either entirely with Federal funds or with an allocated mix of Federal funds and Levin funds.

2. Rejection of a Restructured Exemption. As noted above, the NPRM also requested comments on a possible restructuring of the exemption in section 300.32(c)(4) to mirror the reporting exception contained in section 434(e)(2)(A) of the Act, which exempts State, district, and local party committees from reporting FEA if they have combined receipts and disbursements for FEA (whether allocable or not) that together aggregate to less than $5,000 in a calendar year. Seven commenters addressed the restructuring proposal, all of them asserting that any restructured exemption would be contrary to Congressional intent.

As discussed above, the Court of Appeals held that the careful balance already reflected in the Levin Amendment represents Congress's exercise of its judgment, and effectively precludes the Commission from promulgating a further exemption unless such an exemption were “truly de minimis .” Shays Appeal at 114. In light of the comments received in this rulemaking and the decision of the Court of Appeals, the Commission has decided not to adopt the restructuring proposal contained in the NPRM.

The Commission certifies that the attached final rule does not have a significant economic impact on a substantial number of small entities. The basis for this certification is that the organizations affected by this final rule are State, district, and local party committees and organizations, which are not “small entities” under 5 U.S.C. 601. These not-for-profit committees do not meet the definition of “small organization,” which requires that the enterprise be independently owned and operated and not dominant in its field. 5 U.S.C. 601(4). State political party committees are not independently owned and operated because they are not financed and controlled by a small identifiable group of individuals, and they are affiliated with the larger national political party organizations. In addition, the State political party committees representing the Democratic and Republican parties have a major controlling influence within the political arena of their State and are thus dominant in their field. District and local party committees are generally considered affiliated with the State committees and need not be considered separately. To the extent that any State party committees representing minor political parties might be considered “small organizations,” the number affected by this final rule is not substantial.

Under section 6303(b) of the Intelligence Reform Act, 1 which added a new section 10(k) to the Federal Deposit Insurance Act (FDI Act), an officer or employee of an Agency or Reserve Bank who acts as a “senior examiner” for a particular depository institution may not, within one year after terminating employment with the relevant Agency or Reserve Bank, knowingly accept compensation as an officer, director, employee or consultant from that depository institution or any company (including a bank holding company or savings and loan holding company) that controls the depository institution. 2 Section 10(k) imposes a similar post-employment restriction on an officer or employee who acts as the “senior examiner” of a particular depository institution holding company, but in these circumstances, the post-employment restrictions apply to relationships with the depository institution holding company and any depository institution subsidiary of the holding company. 3 The restrictions in section 10(k) apply only to examiners who served as a senior examiner for a particular depository institution or holding company for two or more months during the final twelve months of their employment at the Agency or Reserve Bank.

If a senior examiner violates the one-year post-employment restrictions in section 10(k), the statute requires the appropriate Federal banking agency to initiate proceedings to impose an order of removal and prohibition or a civil money penalty, or both, on the former senior examiner. Congress directed each Agency to prescribe regulations to administer and carry out section 10(k), including rules, regulations or guidelines to define the scope of persons who are “senior examiners.” The post-employment restrictions in section 10(k) are in addition to any other conflict of interest and ethics rules and restrictions that may apply to examiners under applicable Federal law or the internal codes of conduct established by an Agency or a Reserve Bank.

On August 5, 2005, the Agencies jointly published proposed rules that would implement the post-employment restrictions in section 10(k). 4 The proposed rules defined the term “senior examiner,” discussed the types of Agency and Federal Reserve examiners that would be considered a “senior examiner” in light of the examination programs of each Agency, addressed the nature and scope of the one-year post-employment restriction, and described the procedures for seeking penalties on senior examiners who violate section 10(k).

The Agencies received comments on the proposal from a trade association for banking institutions and an individual. The banking trade association endorsed the proposed rule without suggestions for change and, in particular, noted that the proposed definition of “senior examiner” clearly and appropriately defined those individuals who would be subject to the statutory restriction in accordance with Congress' intent. The individual commenter also generally supported the proposed rules, but asked that the Agencies clarify the rules' application in certain respects. For example, the commenter asked that the Agencies clarify whether an examiner who performs periodic, short-term examinations of a depository institution or depository institution holding company would be considered a “senior examiner.”

The Agencies have adopted final rules that are substantively identical to the proposed rules. The Agencies, however, have made minor, technical changes to the rules as discussed below. As required, the Agencies have consulted with each other to assure that the final rules are, to the extent possible, consistent, comparable and practicable, taking into account the differences in the supervisory programs utilized by the Agencies for the supervision of depository institutions and depository institution holding companies. 5

The post-employment restrictions in section 10(k) apply only to an officer or employee of an Agency or Reserve Bank who serves as the “senior examiner” (or in a functionally equivalent position) of a particular depository institution or depository institution holding company and who, in this capacity, has “continuing, broad responsibility for the examination (or inspection) of that depository institution or depository institution holding company” on behalf of the relevant Agency or Reserve Bank. 6 The final rules, like the proposed rules, provide that an officer or employee of an Agency or a Reserve Bank will be considered the “senior examiner” for a particular depository institution or depository institution holding company if:

• The individual has been authorized by the relevant Agency to conduct examinations or inspections on behalf of the Agency;  7

• The relevant Agency or Reserve Bank has assigned the individual continuing, broad, and lead responsibility for examining or inspecting the depository institution or holding company; and

• The individual's responsibilities for the depository institution or holding company represent a substantial portion of the individual's assigned responsibilities and require the individual to routinely interact with officers or employees of the institution, holding company, or its affiliates.

To be considered a “senior examiner,” an officer or employee must meet each of the criteria listed above. Thus, if a substantial portion of an examiner's responsibilities involve conducting or leading a targeted examination (such as a review of an institution's credit risk management, information systems or internal audit functions), but the examiner does not have broad and lead responsibility for the Agency's or Reserve Bank's overall examination program with respect to the institution, the examiner would not be considered a “senior examiner” with respect to the institution. Such an examiner is not likely to develop the type and degree of relationship with any one institution that the post-employment restriction was designed to address. In addition, the final rules would not cover an examiner who performs only periodic, short-term examinations of a depository institution or depository institution holding company and who does not have ongoing, continuing responsibility for the institution or holding company. Similarly, an examiner who divides his or her time across a portfolio of depository institutions or holding companies, each of which does not represent a substantial portion of the examiner's responsibilities, also would not be considered a “senior examiner.”

To be a “senior examiner,” the examiner also must have “continuing” responsibility for the relevant Agency's or Reserve Bank's supervisory program with respect to the particular depository institution or depository institution holding company. The Agencies believe that an examiner would have “continuing” responsibility for an institution or holding company only when the examiner's responsibilities for the institution or company were expected to continue for a sufficient period of time, for example, for at least two months, that would enable the examiner to develop the type and degree of “meaningful,” “dedicated” and “sustained” relationship with the institution or company that the statute was designed to address. 8

The Agencies believe that the definition of “senior examiner” properly applies the post-employment restrictions in section 10(k) to those examiners who, by reason of their position and assigned responsibilities, have broad responsibility for a depository institution or depository institution holding company and are expected to devote a substantial amount of their time to that institution or holding company on a continuing basis.

Because the titles and roles of examiners vary among the Agencies, the preamble to the proposed rules described the types of examiners that each Agency expected would be considered a “senior examiner” in light of the structure and nature of the Agency's supervisory program. 9 The trade association commenter found that these descriptions were very helpful, and the Agencies believe these descriptions accurately describe the types of examiners that may be considered “senior examiners” under the Agencies' current supervisory programs. To further help examiners comply with the one-year post-employment restrictions, the Agencies intend to establish and maintain appropriate procedures to notify an examiner in writing if the relevant Agency believes the examiner's assigned responsibilities would cause the examiner to be considered a “senior examiner” with respect to any depository institution or depository institution holding company. Nonetheless, the post-employment restrictions in section 10(k) and the final rules apply directly to senior examiners, and examiners are responsible for becoming familiar with and ensuring their own compliance with the statute. Accordingly, examiners who have questions concerning whether they may be considered a “senior examiner” for an institution or holding company are encouraged to contact the appropriate persons at their respective Agency or Reserve Bank.

If an officer or employee of an Agency or a Reserve Bank serves as the senior examiner for a depository institution during two or more months of the individual's final twelve months of employment with the Agency or Reserve Bank, section 10(k) prohibits the individual from knowingly accepting compensation as an employee, officer, director, or consultant from the depository institution or any company that controls the depository institution (including a bank holding company or savings and loan holding company) for one year after leaving the employment of the Agency or Reserve Bank. Because the prohibition extends to companies that control the relevant depository institution, it would not prohibit the senior examiner from accepting employment with a subsidiary or affiliate of a bank holding company, savings and loan holding company, or other company that controls the depository institution (other than the depository institution for which the individual served as a senior examiner). 10

If an officer or employee serves as the senior examiner for a depository institution holding company for two or more months during the last twelve months of his or her employment with an Agency or a Reserve Bank, the statute and final rule prohibit the individual from becoming employed by, or otherwise accepting compensation in the manner described above, from that holding company or any depository institution subsidiary of the holding company for one year after leaving the employment of the Agency or Reserve Bank.

Under section 10(k), a person is deemed to be a consultant for purposes of the one-year post-employment restrictions only if such person “directly works on matters for, or on behalf of,” the relevant depository institution, depository institution holding company or other company. 11 The Agencies have incorporated this rule of construction into the final rules. We interpret this provision to mean that a former senior examiner who joins a consulting or other firm may not, during the twelve-month post-employment “cooling-off” period, participate in any work that the firm is conducting for a depository institution or company that the former senior examiner would be prohibited from doing directly. 12 The former senior examiner would not, however, violate the post-employment restrictions in section 10(k) by joining a firm that performs work for such an institution or company as long as the former senior examiner does not personally participate in any such work.

As provided by section 10(k), the head of each Agency may waive application of the statute's post-employment restrictions to a senior examiner on a case-by-case basis if the head of the Agency determines that “granting the waiver would not affect the integrity of the supervisory program of [such Agency].”  13 The Agencies expect to grant waivers only in special circumstances. If an Agency grants a waiver to a senior examiner, the post-employment restrictions in section 10(k), and the associated penalties, would not apply to the senior examiner.

If a senior examiner violates the post-employment restrictions in section 10(k), the statute requires the appropriate Agency to seek one of the following penalties:

• An order (1) removing the individual from his or her position at, or prohibiting the individual from further participation in the affairs of, the relevant depository institution, depository institution holding company, or other company for a period of up to five years, and (2) prohibiting the individual from participating in the conduct of the affairs of any insured depository institution for a period of up to five years; or

• A civil monetary penalty of not more than $250,000. 14

Under section 10(k), to obtain an order of removal or prohibition, an Agency must follow the rules and procedures that apply in similar types of proceedings against depository institutions and institution-affiliated parties. Specifically, section 10(k) states that removal and prohibition proceedings must be conducted in accordance with section 8(e)(4) of the FDI Act, which provides the individual the right to an administrative hearing prior to final Agency action. Section 10(k) further provides that an Agency seeking to impose a civil monetary penalty on a former senior examiner must do so either in accordance with section 8(i) of the FDI Act, which also provides the individual the right to an administrative hearing prior to final Agency action, or through a civil action brought in an appropriate United States District Court. 17

As stated in the preamble to the proposal, the Agencies do not believe it is necessary to codify these procedures, which are adequately set forth in the statute. Accordingly, the final rules cross-reference the required statutory procedures. Proceedings against examiners for violations of the post-employment restrictions would take place in accordance with the Agencies' rules of practice and procedure, and the Agencies have amended the scope sections of their respective Rules of Practice and Procedure to reflect this fact.

The Intelligence Reform Act provides that the post-employment restrictions imposed by section 10(k) shall become effective on December 17, 2005. 18 Accordingly, section 10(k) and the final rules apply only to officers or employees of an Agency or Reserve Bank who terminate their employment with the Agency or Reserve Bank on or after December 17, 2005. As explained in the proposal, however, because of the statute's twelve-month “look-back” provision, an officer or employee who leaves an Agency or a Reserve Bank within one year of December 17, 2005, may be subject to the post-employment restrictions in section 10(k) based on his or her examination responsibilities as far back as December 17, 2004.

For example, if an Agency examiner terminates his or her employment with the relevant Agency on January 1, 2006, and the individual, while employed by the Agency, served as the “senior examiner” for a particular depository institution from May 1, 2005 to October 1, 2005, the individual is subject to the post-employment restrictions. Although the service that caused the individual to be considered a “senior examiner” occurred prior to December 17, 2005, such service occurred during the last twelve months of the individual's employment with the Agency and, accordingly, the examiner may not become employed by the relevant depository institution, or any company that controls the depository institution, until January 2, 2007. However, if in the foregoing example the examiner terminated his or her employment with the Agency prior to December 17, 2005 (the effective date of the statute), the employee would not be subject to the post-employment restrictions in section 10(k).

Under section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), each Agency certifies that the final rules will not have a significant economic impact on a substantial number of small entities. Section 10(k) and the final rules impose post-employment restrictions on certain senior examiners employed by an Agency or a Reserve Bank and do not impose any obligations or restrictions on banking organizations, including small banking organizations.

The OCC and OTS have determined that this final rulemaking is not a significant regulatory action under Executive Order 12866.

Under section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (Unfunded Mandates Act), the OCC and OTS must prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the OCC and OTS to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. The OCC and OTS have determined that their respective final rules will not result in expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, neither the OCC nor OTS has prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Ch. 3506; 5 CFR 1320 Appendix A.1), the Agencies reviewed the final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.

Section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, 113 Stat. 1338, 1471 (Nov. 12, 1999) requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. As noted above, commenters generally found the proposed rules were clear and the final rules are substantively similar to the proposed rules.

The National Bank Act authorizes the OCC to collect assessments, fees, or other charges as necessary or appropriate to carry out the responsibilities of the Office. 12 U.S.C. 482. Under this authority, the OCC collects semiannual assessments from national banks, as described in 12 CFR part 8 and in the Notice of Comptroller of the Currency Fees, which is published no later than the first business day of December each year. 1 Part 8 currently requires each national bank to compute the amount of its semiannual assessment fee and pay that amount to the OCC by January 31 and July 31 of each year. Banks base their assessments on the data each bank submits in the most recent Call Report.

The OCC currently reviews each assessment computation after receiving Call Report data from the Federal Deposit Insurance Corporation (FDIC) in March and September of each year. The OCC finds on average approximately 150 errors per assessment cycle through those reviews. When the OCC finds an overpayment or underpayment of a semiannual assessment, the OCC contacts the national bank, explains the error, and refunds (or collects, as the case may be) the funds electronically.

This assessment collection process is cumbersome and has become outdated, and the procedure for reviewing and correcting miscalculations is inefficient. For these reasons the interim rule will revise the assessment process as described below.

The interim rule provides that the OCC will calculate the semiannual assessment fee due from each bank based on the most recent Call Report data. Under the new assessment process, the OCC will send each national bank an assessment collection notification no later than 7 business days prior to March 31 and September 30 of each year. The assessment will cover the six month period beginning on January 1 and July 1 before each payment date. The OCC will automatically deduct the assessed amount from the bank's designated bank account on March 31 and September 30. By delaying the assessment calculation date by two months, the OCC can collect assessments based on final Call Report data, and thus eliminate the cumbersome correction process currently required. This streamlining of our assessment collection process has the effect of reducing regulatory burden for national banks and is thus consistent with the objectives of section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996, 2 which calls for the periodic review of the OCC's regulation and the elimination of unnecessary burden.

Under the interim rule, a national bank will be able to notify the OCC of any errors in the calculation of semiannual assessments or errors in the electronic transfer process. The Comptroller will be obligated to respond to such notices within 30 days of receipt.

The interim rule eliminates an erroneous sentence in section 8.7(a) regarding delinquent semiannual assessment payments. The sentence duplicates in part the two sentences that follow it, and our research indicates that it is likely the result of a clerical or typographical error.

The rule also makes conforming changes to section 8.7(b) to describe the new streamlined procedure to correct errors in the assessment process. The interim rule makes non-substantive changes to conform part 8 to the new assessment collection process and other minor technical changes. Finally, in § 8.6(a)(1), (2), and (4), and § 8.7(a), the interim rule eliminates references to “District of Columbia,” “District of Columbia banks” and “each district bank” to reflect the provisions of the 2004 District of Columbia Omnibus Authorization Act, section 8, Public Law 108-386, 118 Stat. 2228 (2004), which shifted regulatory responsibility of District of Columbia banks from the OCC to the FDIC and Board of Governors of the Federal Reserve System.

Under 5 U.S.C. 553(b)(B), notice and comment rulemaking is not required if an agency, for good cause, finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  3 This interim final rule makes only minor changes to the assessment collection process. It does not change the method for calculating assessments due from national banks or affect the amount of assessment due from each national bank. Completion of notice and comment rulemaking procedures prior to the effective date of this rule are unnecessary because the changes made by the rule are non-substantive and do not affect the amount of a national bank's assessment or accelerate the assessment date. Making this interim final rule effective prior to the completion of notice and comment procedures is consistent with the public interest because the rule reduces regulatory burden for all national banks. Although notice and comment are not required prior to the effective date of the rule, we invite comments on all aspects of the rule. We will revise the rule if necessary or appropriate in light of the comments.

The OCC also requests comment on whether the interim rule is written clearly and is easy to understand. On June 1, 1998, the President issued a memorandum directing each agency in the Executive branch to write its rules in plain language. This directive applies to all new proposed and interim rulemaking documents issued on or after January 1, 1999. In addition, Public Law 106-102 requires each Federal agency to use plain language in all proposed and interim rules published after January 1, 2000. The OCC invites comments on how to make this rule clearer. For example, you may wish to discuss:

(1) Whether we have organized the material to suit your needs;

(2) Whether the requirements of the rule are clear; or

(3) Whether there is something else we could do to make the rule easier to understand.

This interim final rule takes effect 30 days after publication in the Federal Register . 5 U.S.C. 553(d). Under 12 U.S.C. 4802(b)(1), Federal banking agency regulations or amendments to regulations “which impose additional reporting, disclosure, or other requirements on insured depository institutions” must be effective on the first day of a calendar quarter which begins on or after the date on which the regulations are published in final form. As described above, this interim rule operates to reduce burden on national banks. Accordingly, the requirement to be effective on the first day of a calendar quarter does not apply to this interim rule.

The Regulatory Flexibility Act (Pub. L. 96-354, Sept. 19, 1980) (RFA) applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). 4 Because the OCC has determined for good cause that the Administrative Procedure Act does not require public notice and comment on this final rule, we are not publishing a general notice of proposed rulemaking. Thus, the RFA does not apply to this interim final rule.

The OCC has determined that this interim final rule is not a significant regulatory action under Executive Order 12866.

Section 202 of the Unfunded Mandates Reform Act of 1995  5 (Unfunded Mandates Act) requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. The OCC has determined that this interim rule will not result in expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, the OCC has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Ch. 3506; 5 CFR part 1320 Appendix A.1), we have reviewed the interim rule to assess any information collections. There are no collections of information as defined by the Paperwork Reduction Act in the interim rule.

We are amending our regulations to reflect changes to the FCA's organization and identification of those FCA employees responsible for various functions.

We revise the regulations by:

(1) Deleting a Chief Operating Officer from the description of the organization;

(2) Changing the name of the Office of Policy Development and Risk Control to the Office of Regulatory Policy;

(3) Changing the name of the Office of Resources Management to the Office of Management Services;

(4) Including the Secretary to the Board in FCA's organizational structure; and

(5) Providing the addresses of FCA field offices. We also updated the statutory citation for the Farm Credit Act.

These amendments involve matters of Agency organization and other minor technical changes. Therefore, pursuant to the Administrative Procedures Act, 5 U.S.C. 553(b), notice and public comment are not required and/or are unnecessary and contrary to the public interest.

SBA is continuing to respond to the unprecedented devastation incurred by those small businesses located in the communities affected by Hurricanes Katrina and Rita. The Agency has announced a new initiative called the GO Loan Pilot, which is one important component of the Agency's response. The GO Loan Pilot generally will apply the policies and procedures in place for the Agency's SBAExpress program, although there will be several substantial differences. The pilot is designed to streamline SBA financing on an emergency basis to those small businesses located in, locating to or re-locating in the parishes/counties that have been Presidentially-declared as disaster areas resulting from Hurricanes Katrina and Rita, plus any contiguous parishes/counties. The maximum loan amount under the pilot is $150,000 and loans carry a full 85 percent guaranty by SBA. The GO Loan Pilot will be available for use in FY 2006 and will expire on September 30, 2006.

To maximize the effectiveness of the GO Loan Pilot, SBA is waiving certain Agency regulations for the 7(a) Business Loan Program. These waivers will also minimize the burdens on the businesses applying for loans through the GO Loan Pilot and provide incentives for lenders to participate in the pilot.

Under § 120.102 of SBA's regulations (13 CFR 120.102), an applicant for an SBA-guaranteed loan through the 7(a) program must show that the desired funds are not available from the personal resources of any owner of 20 percent or more of the equity of the applicant. If such personal resources are readily available, SBA requires that those resources above a certain amount, which varies with the size of the loan, must be injected into the applicant firm's financing package to reduce the amount of SBA's funding. Under the GO Loan Pilot, the maximum loan amount is limited to $150,000, so under standard 7(a) program procedures, each 20 percent or more owner of the applicant business normally would be required to inject any personal liquid assets which are in excess of two times the total financing package, or in excess of $100,000, whichever is greater.

However, in recognition of the scope and magnitude of the destruction suffered by these communities as a result of Hurricanes Katrina and Rita, and the need for immediate reconstruction, SBA believes that, due to other disaster-related exigencies, prospective borrowers under the GO Loan Pilot will be unable to expediently meet SBA's requirement that personal resources above a certain amount must be injected into the firm's capitalization. Therefore, to further facilitate and expedite the processing of SBA loans under the GO Loan Pilot, and to avoid over-taxing the resources of financially-strapped borrowers, SBA is waiving § 120.102 for loans approved under this pilot.

Under §§ 120.213 through 120.215, SBA prescribes the maximum interest rates that a Lender may charge a borrower. For loans approved under the GO Loan Pilot, SBA is waiving the regulatory provisions set out at §§ 120.213(a), 120.214(a) through (e) and 120.215. GO Loan Pilot lenders may charge the interest rates applicable to the SBAExpress program as set forth in the SBAExpress Program Guide, available on SBA's Web site at http://www.sba.gov/banking/exguide.pdf . SBA is also waiving § 120.222, which prohibits lenders from charging certain fees to borrowers. Thus, under the Pilot, lenders will be permitted to charge the same fees on GO Loans as they charge on their non-SBA guaranteed commercial loans. SBA is waiving §§ 120.213(a), 120.214(a) through (e), 120.215 and 120.222 to provide incentives to lenders to participate in the pilot program.

SBA's waiver of these provisions is authorized by § 120.3 of its regulations (13 CFR 120.3). These waivers apply only to those loans approved under the GO Loan Pilot and will last only for the duration of the pilot, which expires September 30, 2006. As part of the GO Loan Pilot, these waivers apply only to those small businesses located in, locating to or re-locating in the parishes/counties that have been Presidentially-declared as disaster areas resulting from Hurricanes Katrina or Rita, plus any contiguous parishes/counties. (A list of all eligible parishes/counties is located at http://www.sba.gov/financing/index.html .)

On Friday, September 9, 2005, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. and 1,200 ft above the surface at Arctic Village, AK (70 FR 53594). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new SIAPs and one new DP for the Arctic Village Airport. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 02, original; (2) RNAV (GPS) RWY 20, original. The DP is the TUVVO One. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Arctic Village Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 establishes Class E airspace at Arctic Village, Alaska. This Class E airspace is established to accommodate aircraft executing two new SIAPs and one new DP, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Arctic Village Airport, Arctic Village, Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Arctic Village Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Friday, September 9, 2005, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. above the surface at Nikolai, AK (70 FR 53598). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new SIAPs for the Nikolai Airport. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 04, original; (2) RNAV (GPS) RWY 22, original. Class E controlled airspace extending upward from 700 ft. above the surface in the Nikolai Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 establishes Class E airspace at Nikolai, Alaska. This Class E airspace is created to accommodate aircraft executing two new SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Nikolai Airport, Nikolai, Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Nikolai Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Friday, September 9, 2005, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. above the surface at Nenana, AK (70 FR 53597). The action was proposed in order to revise Class E airspace to be sufficient in size to contain aircraft while executing SIAPs. The change is necessary in order to account for magnetic variation changes associated with runway orientation. Class E controlled airspace extending upward from 700 ft. above the surface in the Nenana Airport area is revised by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 revises Class E airspace at Nenana, Alaska. This Class E airspace is established to accommodate magnetic variation changes associated with runway orientation, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Nenana Municipal Airport, Nenana, Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Nenana Municipal Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On Friday, September 9, 2005, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to amend the Class E airspace upward from 700 ft. above the surface at Egegik, AK (70 FR 53595). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two revised SIAPs for the Egegik Airport. The approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 12, Amendment (Amdt) 1; (2) RNAV (GPS) RWY 30, Amdt 1. Class E controlled airspace extending upward from 700 ft. above the surface in the Egegik Airport area is modified by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 revises Class E airspace at Egegik, Alaska. This Class E airspace is modified to accommodate aircraft executing two revised SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Egegik Airport, Egegik, Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Egegik Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

Congress enacted, and the President signed, the Justice for All Act (“Act”), which became effective October 30, 2004. Section 102 of the Act, 18 U.S.C. 3771 (“section 3771”), codifies crime victims” rights, requires officers and employees of the Department of Justice (“Department”) and other government departments and agencies to exercise best efforts to accord victims those rights, establishes enforcement measures for those rights, and requires the Attorney General to promulgate regulations to promote compliance by responsible Department of Justice officials with their obligations regarding victims' rights. Section 3771(f) states that the regulations must: (a) Designate an administrative authority within the Department to receive and investigate complaints relating to the provision or violation of the rights of a crime victim by Department employees; (b) require a course of training for Department employees and offices that fail to comply with their obligations regarding victims' rights; (c) contain disciplinary sanctions for willful and wanton failure to comply with obligations regarding victims' rights; and (d) provide that the Attorney General or his designee shall be the final arbiter of a complaint. See 18 U.S.C. 3771(f).

In order to implement section 102 of the Act, the Department published a proposed rule on July 7, 2005, that proposed to create a new section in part 45, Employee Responsibilities, of title 28, Judicial Administration, of the Code of Federal Regulations. 70 FR 39206-01. The proposed rule provided for the creation of the office of the Victims' Rights Ombudsman (VRO) within the Executive Office for United States Attorneys (EOUSA) as the designated administrative authority within the Department to receive and investigate complaints relating to the provision or violation of the rights of a crime victim. The proposed rule delineated the powers and duties of the VRO as well as the basic procedures of its operations.

The proposed rule authorized the VRO to designate points of contact (POCs) in each office of the Department to perform initial investigations and review of complaints, in order to allow for complaints to be addressed at the most local level.

The proposed rule then established a procedure for filing complaints, investigations of those complaints, and imposition of disciplinary sanctions against employees where warranted. The proposed rule required that a complaint be in writing and contain sufficient information to enable an investigation of the complaint by the POC. Complaints were to be filed within 30 days of the alleged violation of a victim's rights, unless the victim demonstrated good cause for the delay. The precise requirements for the investigation were to be established by internal Department policy guidance. At the end of the investigation, the POC was to prepare a written report of the results of the investigation, including a signed statement by the victim as to whether or not he was satisfied that his complaint had been resolved. In either case, however, the report was to be forwarded to the VRO for review. The VRO would then decide whether (a) no further action was necessary; (b) further investigation, to be conducted by the VRO, was necessary; or (c) the employee would be required to undergo training or be subject to disciplinary sanctions. The VRO's determination was not to be dependent on the victim's satisfaction, although it could be taken into account. The VRO would be the final arbiter of whether the complaint had been adequately addressed.

If the VRO determined that no further action was necessary, the matter was to be closed.

The VRO, upon either review of the POC's investigation or his own further investigation, could require an employee to undergo training on the obligations of Department employees regarding victims' rights. If, upon either review of the POC's investigation or his own further investigation, the VRO determined that the employee had willfully or wantonly violated a crime victim's rights, the VRO was authorized to recommend, in conformity with laws and regulations regarding employee discipline, a range of disciplinary sanctions to the head of the office in which the employee was located, or to the official who had been designated by Department of Justice regulations and procedures to take action on disciplinary matters for that office. The head of that office of the Department of Justice, or the other official designated by Department of Justice regulations and procedures to take action on disciplinary matters for that office, was to be the final decision-maker regarding the disciplinary sanction to be imposed.

Because of restrictions on the release of information regarding the status of Department employees and the need to balance the rights of the victim with the rights of the employee, the proposed rule provided that the victim would be notified of the results of the investigation only at the discretion of the VRO and in accordance with relevant statutes and regulations regarding privacy of Federal employees.

Both the POC and the VRO were required to refer to the Office of the Inspector General (OIG) or the Office of Professional Responsibility (OPR) any matters that fell under those offices' jurisdictions that may have come to light in the POC's or the VRO's investigation.

For purposes of the new section, victims of crime were defined identically to the definition in the Justice for All Act, and victims' rights were defined as those established in the Act.

Three public comments were received in response to the proposed rule from victim rights' advocates and advocacy organizations. This section explains the Department's response to those comments and notes changes to the proposed rule taken in response to several of them. The comments are divided into three categories structure of the office, powers of the office, and the complaint process.

One commenter commented that the proposed rule improperly placed the VRO in EOUSA. According to this commenter, EOUSA is viewed within the Department only as a resource, rather than an authority. Further, claimed this commenter, although all Department offices are subject to the statute, including investigative and corrections agencies, EOUSA deals only with U.S. Attorneys' Offices (USAOs). Rather than EOUSA, this commenter suggested that the VRO should be located in the office of the Deputy Attorney General or, alternatively, within OPR.

The Department has declined to adopt changes to the proposed rule in response to this comment. Although it is true that all Department employees are subject to the regulation, the Department expects that the large majority of complaints will relate to Assistant United States Attorneys (AUSAs), since the rights in the Act primarily apply to the prosecution stage. Furthermore, the Department does not agree that EOUSA is only a resource and not an authority. EOUSA is a central policy coordination office that routinely disseminates binding guidance for the operation of U.S. Attorneys' Offices. OPR is not a proper location for the VRO because it is anticipated that most of the complaints raised by victims will not implicate the investigative, litigative, or advice-giving conduct of Department attorneys normally handled by OPR. In the unusual case in which such conduct is implicated, the regulations provide that the complaint be referred to OPR by the VRO or by the POC. The Department therefore determined that EOUSA was the most appropriate office in which to locate the VRO and declines to revise that determination.

One commenter commented that the decisions of the VRO should be appealable by the victim in case he is unsatisfied with the outcome of his complaint. According to the commenter, this is another reason to locate the VRO in the office of the Deputy Attorney General, so that the Deputy Attorney General can serve as the reviewing official.

The Department declines to adopt changes to the proposed rule in response to this comment. The only two outcomes provided for in the statute for violations of the Act are the requirement of training and the possible imposition of disciplinary sanctions. In the first case, the VRO has no discretion under the statute, once he has made a finding of a violation, not to require training. If the VRO declined to require training, the only reason would be a lack of factual basis for doing so. A reviewing official, such as the Deputy Attorney General, would not be in a better position than the VRO to make findings of fact. In the second case, the decision to impose disciplinary sanctions on an employee is a confidential matter under other provisions of federal law. A complaining member of the public would not be permitted to know the results of the VRO's investigation if it resulted in a recommendation for the imposition of disciplinary sanctions or whether those sanctions were in the end imposed.

One commenter commented that the rule should direct that the VRO require training for Department employees or offices when the VRO finds a violation of victims' rights that are not willful or wanton, rather than authorizing the VRO to require training if the VRO deems it necessary.

Upon review of the statutory language, the Department accepts this comment and has made changes in the final rule directing the VRO to require training in response to violations of victims' rights. The statute makes clear that such training shall be required, with no room for discretion on the part of the VRO.

One commenter commented that the VRO should, in consultation with the Department's Office for Victims of Crime (OVC), identify and promote best practices in victims' rights training.

The Department declines to adopt this comment. The Act neither requires nor authorizes the VRO to perform this function, and the victim-witness staff at the components already do so. Indeed, it is expected that the required training will be conducted by the relevant component.

One commenter commented that a victim should not be required to submit complaints to a POC in each different office of the Department. Rather, the commenter suggested, complaints should go directly to the VRO. According to the commenter, a victim might not even be aware of which office had violated his rights.

The Department declines to adopt changes to the proposed rule in response to this comment. The Department proposed the POC system for both the benefit of victims and for administrative practicability. The Department believes that complaints by victims are most likely to be resolved at the local level. A local POC can more easily and effectively investigate and resolve the complaint. The Department acknowledges that a victim might not necessarily know which office failed to provide him his rights, but a guide to the system and instructions on how to contact the appropriate POC will be made available to victims. Further, the Department is unable to determine how many complaints may be filed. It is impracticable to have one central office receive and investigate all complaints from across the nation without some form of initial review as to the sufficiency of the complaint and the possibility for local resolution.

One commenter commented that a victim may have a complaint against the POC himself and that, therefore, the final rule should provide for an alternative complaint procedure in such circumstances, such as having an alternative POC available to the crime victim.

The Department declines to accept his comment. Such a provision would be highly burdensome to enact. The burdens of doubling the number of individuals trained in VRO procedures do not seem worthwhile for the likely very small number of complaints actually brought against the POC. Further, some United States Attorneys' Offices may not be able to designate two POCs. Nevertheless, the Department has made a small change to the final rule to require all complaints alleging a violation that would create a conflict of interest for the POC to investigate to be forwarded immediately to the VRO.

One commenter commented that the requirements for the information to be provided in the written complaint were too burdensome on the victim. For example, the required information could be beyond the knowledge of the victim. The commenter suggested that the requirements instead be recommended items. This commenter also commented that the requirement that the complaint include information regarding whether the complainant had contacted the employee who is the subject of the complaint indicated an exhaustion-of-remedies requirement.

The Department accepts this comment in part and has written the final rule to require only as much information as is known to, or reasonably available to, the victim. However, the Department declines to make the information only recommended rather than required. The information is intended to provide as much background to the POC and the VRO as possible in order to expedite the investigation. Further, to be clear, there is no exhaustion-of-remedies requirement.

Two commenters commented that the information required in the complaint included the district court case number and the name of the defendant in the case, although a victim could file a complaint prior to an indictment. The commenters recommended that the final rule clarify that such information is required only when such information exists.

The Department accepts this comment, but believes that the change in the final rule noted in the paragraph above adequately resolves the issue raised by the commenter.

Two commenters commented that the Department should draft standard complaint forms for victims to fill out and should provide assistance to victims in completing and submitting the forms.

The Department declines to adopt changes to the proposed rule in response to this comment. The Department does not rule out the possibility of providing written complaint forms, but does not believe that it is necessary to do so in this final rule. Likewise, the Department does not believe it is necessary to state in this final rule that the POC or VRO will provide assistance to victims in submitting complaints.

Two commenters commented that the proposed rule's requirement that a complaint make a prima facie case of a violation was unfair to complainants. According to the commenters, the rule did not define the standards for making a determination as to whether a prima facie case had been made, such that the complainant would be unaware of the quantum of evidence required for the complaint.

The Department partially adopts this comment. The Department has replaced the term “prima facie” with language similar to that found in the regulations governing the operations of the Alaska Office of Victims' Rights (OVR). Under those regulations, the Alaska OVR conducts a preliminary examination of a complaint to assess whether “there is specific and credible information to indicate that one or more crime victim rights guaranteed by the laws and constitution of this state may have been violated by a justice agency or person.” 23 AAC 10.030(2). The final rule states that a complaint must provide “specific and credible information that demonstrates that one or more crime victims' rights listed in 18 U.S.C. 3771 may have been violated by a Department of Justice employee or office.”

Three commenters commented that the time limit of 30 days for filing of a complaint was unfair and burdensome to victims. According to the commenters, many victims are unaware of their rights or are unaware when those rights have been violated. The commenters recommended eliminating the time frame for complaints, considerably extending the time frame, or making the time frame begin when the victim became aware of the violation of his rights.

The Department partially adopts this comment. The Department does not wish victims to have their ability to file a complaint of violation of their rights arbitrarily limited; at the same time, however, the Department must design the complaint process so that complaints can be investigated and resolved expeditiously and effectively and in such a way that Department employees' due process rights are protected. A reasonable limitation period can be fair to both parties. The Department has therefore changed the final rule to provide that complaints must be filed within 60 days of knowledge of the violation, but not more than one year after the actual violation. Because of the significant extension of time to file a complaint, the exemption for good cause for a delay has been removed.

Three commenters commented that, while the proposed rule placed time limits on the ability of the victim to file a complaint, the rule did not require the POC and VRO to reply to the complaint within a specific time frame.

The Department partially adopts this comment. The final rule requires that the POC or the VRO shall investigate the complaint “within a reasonable time period.” The Department is unable to require a specific time frame for response in this final rule because of the uncertainty regarding the number and complexity of complaints that may be filed. The definition of “reasonable time period” will be addressed in internal guidance and may be adjusted as experience with the complaint process refines the Department's procedures.

Two commenters commented that the proposed rule's limitations on information as to the resolution of the complaint being made available to the victim, including prohibition of disclosure of the proposed POC written report, are unfair to the victim. According to the commenters, open government requires that information should be presumptively available and that, without disclosure to the fullest extent possible, victims will not be confident that their complaints have been addressed.

The Department declines to adopt this comment. The Department recognizes that victims desire to know that their complaints have been taken seriously and have been addressed. However, as a matter of law, the Department is severely restricted regarding what information about individuals in its possession it may release. See 5 U.S.C. 552a(b). The Department regrets that victims might therefore not receive information regarding the ultimate disposition of their complaints, but believes that providing a discretionary disclosure by the POC or the VRO within the bounds of the law and Department policy is the best compromise between the right of the victim to an open process and the right of an accused employee to confidential adjudication of a potential disciplinary action.

Three commenters commented that the proposed rule's requirement that the victim sign a statement indicating his or her satisfaction (or lack thereof) in response to the initial investigation of the complaint was unfair and unworkable, particularly in combination with the prohibition on the disclosure of the report to the victim.

The Department accepts this comment and has eliminated the requirement of the victim statement.

One commenter made several suggestions for additional provisions in the regulations. The commenter stated that the final rule, similar to those governing the operations of the Alaska OVR, should list reasons for which the POC or VRO may decline to investigate a complaint and should provide standards for prioritizing the processing of complaints. The Department agrees that such guidance would be helpful to the POC and VRO, but it is unnecessary to include in this final rule.

The same commenter suggests that the final rule include procedures for maintaining confidentiality of information provided by a victim to the VRO, including creation of a testimonial privilege on the part of the VRO for information provided to the VRO by the victim, such as inconsistent or contradictory statements about the crime at issue. The Department declines to adopt these suggestions. First, a victim's privacy will be protected under the Privacy Act and other relevant statutes and Department policy. Second, the VRO, unlike, for example, the Alaska OVR, will be part of a law enforcement agency. Therefore, under certain circumstances the VRO may be legally required to disclose information received from a victim. For example, any information that would tend to exculpate a defendant must be disclosed to the defense, see Brady v. Maryland , 373 U.S. 83 (1963).

Because this final rule affects only internal Department procedures, the Department states that this final rule will not have any effect on small businesses of the type described in 5 U.S.C. 605. Accordingly, the Department has not prepared an initial Regulatory Flexibility Act analysis in accordance with 5 U.S.C. 603.

The Department of Justice has reviewed this final rule in light of Executive Order 12866, section 1(b), Principles of Regulation. The Department of Justice has determined that this final rule is a “significant regulatory action” under Executive Order 12866, section 3(f)(4), Regulatory Planning and Review. Accordingly, this final rule has been reviewed by the Office of Management and Budget.

In particular, the Department has assessed both the costs and benefits of this final rule as required by Executive Order 12866 section 1(b)(6), and has made a reasoned determination that the benefits of this regulation justify its costs. The costs that the Department considered included the costs to victims of submitting complaints to the POC and VRO, the costs to the employees of participating in the complaint and disciplinary process, and the costs to the Federal Government of creating and maintaining the VRO office. The benefits considered by the Department are that the purpose of the Act and of these regulations is to protect victims' rights. The Department believes that the costs imposed by these regulations are justified by the benefits.

This regulation will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

This final rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This final rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This final rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This final rule is exempt from the requirements of the Paperwork Reduction Act under 5 CFR 1320.4(1) because it relates to the conduct of a Federal criminal investigation or prosecution.

All comments and suggestions relating to the Paperwork Reduction Act, or questions regarding additional information, should be directed to Brenda Dyer, Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, 601 D Street, NW., Washington, DC 20530.

The information presented in this preamble is organized as follows:

EPA is reconsidering one aspect of its final BSCP rule under sections 112 and 307(d)(7)(B) of the Clean Air Act (CAA) as amended (42 U.S.C. 7412 and 7607(d)(7)(B)). This action is also subject to section 307(d) of the CAA (42 U.S.C. 7607(d)).

Entities potentially affected are those industrial facilities that manufacture BSCP. Brick and structural clay products manufacturing is classified under Standard Industrial Classification (SIC) codes 3251, Brick and Structural Clay Tile; 3253, Ceramic Wall and Floor Tile; and 3259, Other Structural Clay Products. The North American Industry Classification System (NAICS) codes for BSCP manufacturing are 327121, Brick and Structural Clay Tile; 327122, Ceramic Wall and Floor Tile Manufacturing; and 327123, Other Structural Clay Products. The categories and entities that include potentially affected sources are shown below:

The reconsideration action does not concern the NESHAP for clay ceramics manufacturing facilities (40 CFR part 63, subpart KKKKK), which were published with the final BSCP rule (40 CFR part 63, subpart JJJJJ).

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the reconsideration action. To determine whether your facility may be affected by the reconsideration action, you should examine the applicability criteria in 40 CFR 63.8385 of the final BSCP rule. If you have any questions regarding the applicability of the final rule to a particular entity or the implications of the reconsideration action, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In addition to being available in the dockets, an electronic copy of today's action also will be available on the Worldwide Web (WWW). Following the Administrator's signature, a copy of this action will be posted at http://www.epa.gov/ttn/oarpg on EPA's Technology Transfer Network (TTN) policy and guidance page. The TTN provides information and technology exchange in various areas of air pollution control.

Section 112 of the CAA requires that we establish NESHAP for the control of hazardous air pollutants (HAP) from both new and existing major sources. Major sources of HAP are those stationary sources or groups of stationary sources that are located within a contiguous area and under common control that emit or have the potential to emit considering controls, in the aggregate, 9.07 megagrams per year (Mg/yr) (10 tons per year (tpy)) or more of any one HAP or 22.68 Mg/yr (25 tpy) or more of any combination of HAP. The CAA requires the NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable. This level of control is commonly referred to as MACT.

The MACT floor is the minimum control level allowed for NESHAP and is defined under section 112(d)(3) of the CAA. In essence, the MACT floor is the level of control already achieved by the better-controlled and lower-emitting sources in each source category or subcategory. For new sources, the MACT floor is the level of emission control that is achieved in practice by the best-controlled similar source. The MACT floor for existing sources is the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory for which the Administrator has emissions information (where there are 30 or more sources in a category or subcategory, as in the case of each BSCP subcategory).

In developing MACT standards, we also consider control options capable of achieving a level of emission control more stringent than the floor. We establish more stringent standards where we find greater reductions are achievable, taking into consideration the cost of achieving the emissions reductions, any health and environmental impacts, and energy requirements.

We proposed NESHAP for major sources manufacturing BSCP on July 22, 2002 (67 FR 47894), and we published the final BSCP rule on May 16, 2003 (68 FR 26690). Following promulgation, the Administrator received a petition for reconsideration (dated July 15, 2003) filed by Earthjustice on behalf of Sierra Club pursuant to section 307(d)(7)(B) of the CAA. The petition requested reconsideration of three aspects of the final rule. We also received a letter (dated October 10, 2003) from counsel for the Brick Industry Association (BIA), commenting on the Sierra Club's petition for reconsideration. On April 19, 2004, EPA issued a letter to the Sierra Club's counsel granting its petition for reconsideration with respect to one issue. On April 22, 2005, we announced our reconsideration of and requested public comment on that issue, specifically our decision to base the MACT requirements for certain tunnel kilns on DLA technology.

In addition to the petition for reconsideration, three petitions for judicial review of the final NESHAP for BSCP manufacturing and clay ceramics manufacturing (40 CFR part 63, subparts JJJJJ and KKKKK, published together on May 16, 2003) were filed with the U.S. Court of Appeals for the District of Columbia Circuit by the Sierra Club, BIA, and two clay ceramics manufacturers (Monarch Ceramic Tile, Incorporated and American Marazzi Tile, Incorporated). 1 The litigation has been stayed to enable EPA to act on Sierra Club's petition for reconsideration prior to briefing. On May 10, 2005, the Court issued its most recent order, holding the case in abeyance until November 10, 2005.

In the proposed rule, the MACT floors for the kiln exhaust from certain tunnel kilns were based on the use of dry lime injection fabric filters (DIFF), dry lime scrubber fabric filters (DLS/FF), or wet scrubbers (WS). Dry limestone adsorber (DLA) technology, which is the most prevalent type of air pollution control device (APCD) used to control emissions from existing brick kilns, was not proposed as a MACT floor technology because we had questions and concerns about DLA based on the information we had at the time. In response to the proposed rule, however, we received numerous comments from industry representatives, kiln manufacturers, and APCD vendors on issues related to the application and performance of the APCD discussed in the preamble. Many commenters reported technical obstacles to the use of DIFF, DLS/FF, and WS technologies, particularly for retrofitting BSCP kilns, as well as other disadvantages of those technologies, and provided information to address our questions and concerns about DLA technology.

As a result of these public comments, we realized that there was more information on DLA technology to be considered and that we did not fully understand the limitations of applying the other technologies that were the focus of our MACT floors analysis at proposal. After reviewing all of the available information, we determined that MACT for some new tunnel kilns should be based on DIFF, DLS/FF, and WS technologies, but that for existing tunnel kilns retrofitting with DIFF, DLS/FF, or WS is not feasible or practical in many cases. We concluded that retrofitting existing BSCP tunnel kilns with certain APCD would likely alter brick quality and color for many kilns, resulting in changes to the product that are central to its character and value. We also determined that our principal concerns with DLA at proposal ( i.e. , generation or no control of particulate matter (PM) emissions and consistency of performance) had been allayed by the information we received in response to the proposal.

In light of the public comments received regarding technical features and limitations of DIFF, DLS/FF, WS, and DLA technologies, we came to new conclusions regarding the effective application of these technologies. We concluded that DLA are the only currently available technology that can be used to retrofit existing tunnel kilns without potentially significant impacts on aspects of the production process that affect the character of the product itself. In the final BSCP rule, we thus allowed existing large tunnel kilns to use the DLA technology.

In addition, we concluded that, because of retrofit concerns, it is not technologically or economically feasible for an existing small tunnel kiln that would otherwise meet the criteria for reconstruction and whose design capacity is increased such that it becomes a large tunnel kiln to meet the relevant standards ( i.e. , new source MACT) by retrofitting with a DIFF, DLS/FF, or WS. We also similarly concluded that it is not technologically and economically feasible for an existing large DLA-controlled tunnel kiln that would otherwise meet the criteria for reconstruction to meet the relevant standards ( i.e. , new source MACT) by retrofitting with a DIFF, DLS/FF, or WS. However, we determined that it is technologically and economically feasible for these types of kilns, whether existing or reconstructed, to retrofit or continue operating with a DLA, and the final rule required that such kilns meet the emissions limits that correspond to the level of control provided by a DLA.

In the final rule, we concluded that DIFF, DLS/FF, and WS are appropriate technologies for new large tunnel kilns and for reconstructed large tunnel kilns that were equipped with DIFF, DLS/FF, or WS prior to construction. For small tunnel kilns, however, we concluded that DLA are the only APCD that have been adequately demonstrated, and, therefore, we based the final requirements for new and reconstructed small tunnel kilns on DLA control.

At this time, we are announcing our final action regarding the one issue in the Sierra Club's petition for reconsideration that we agreed to reconsider. The petition sought reconsideration of three issues relating to EPA's promulgation of final MACT floor standards based on DLA technology. One of the concerns was whether EPA had adequately complied with public notice and comment requirements. Noting that EPA had proposed MACT floor standards based on three different technologies, DIFF, DLS/FF and WS, the Sierra Club argued that EPA had provided no opportunity to comment on either the final DLA-based floors or the final floor approach. Pursuant to section 307(d)(7)(B) of the CAA, 2 we granted the Sierra Club's petition for reconsideration only with respect to that one issue “namely, the Sierra Club's claim that the MACT floors (and MACT standards based on the floors) at promulgation were set using a different control technology than those proposed and that EPA did not provide adequate opportunity for public comment on the revised MACT floors. 3

As stated in the April 22, 2005, notice announcing reconsideration of one aspect of the final rule, the arguments Sierra Club presented in the petition for reconsideration did not persuade us that our MACT floor determination for the final BSCP rule was erroneous or inappropriate. However, because we changed the technological basis of the MACT floors and standards between proposal and promulgation in response to comments received on the proposed rule, we decided to grant reconsideration on this issue and provide an opportunity for public comment on the DLA-based floors and standards reflected in the final rule.

In our notice of reconsideration, we requested comment on the DLA-based floors and standards, including technical issues related to the performance of DLA as compared to DIFF, DLS/FF, and WS; the ability to retrofit existing kilns with DLA, DIFF, DLS/FF, and WS; and whether this should be a consideration when selecting MACT control options. We also specifically requested (1) additional information regarding whether there have been technical difficulties associated with DIFF, DLS/FF, WS, and DLA; (2) additional information on how these control devices have performed at plants operating these technologies; and (3) additional information on the successful application of these technologies to existing kilns. We received 15 responses to our request for public comment. These comment letters are available in the official public docket (Docket ID No. OAR-2002-0054).

The comments we received provided limited new information related to APCD technology performance, including retrofitting issues, technical difficulties, overall performance, or successful application of the control technologies. Instead, the commenters generally referred to comments they had previously submitted on the proposed rule. Overall, the reconsideration notice did not bring to light additional technical information for EPA to weigh in revisiting its original MACT floor and standard-setting decisions. While one commenter argued that the CAA does not permit EPA to consider the feasibility of retrofitting existing kilns with APCD when determining the MACT floor, we disagree with the commenter's legal analysis for the reasons discussed below. Since the reconsideration comments did not provide a basis for us to conclude that our prior analysis was incorrect or flawed, we reaffirm the validity of the determinations we made at promulgation and are making no changes to the final rule. A summary of major comments received on the reconsideration issue and EPA's responses to those comments are provided below.

We received both comments in support of and comments objecting to the DLA-based MACT floors and standards in the final rule. Multiple industry commenters supported our decision to include DLA as a retrofit technology in the MACT floor analyses for BSCP manufacturing. They also agreed with our statement in the April 22, 2005, notice that the petitioners did not provide sufficient information in their petition for reconsideration to warrant any changes to the final rule; indeed, they argued that the final rule should not even be subject to reconsideration. These commenters stated that the comments EPA received on the proposed rule specifically addressed the use of DLA, and thus, inclusion of DLA could have been anticipated by anyone following the public record. The commenters also asserted that the ability to retrofit certain APCD to an existing kiln has not been demonstrated to be achievable. They considered unreasonable the petitioner's assertion that the ability to retrofit a control is irrelevant to the determination of MACT and is equivalent to considering costs. The commenters stated that EPA cannot set a standard that has not been demonstrated as achievable. According to the commenters, under MACT, when the existing sources included in the top 12 percent have controls in place but these controls have not been demonstrated as a “retrofitable” device ( i.e. , they were installed when designing and building the kiln rather than after it was built), then they are not a retrofit control device for that process. In addition, the commenters argued that if the same products cannot be produced after the installation of the control device, then it is not the same process. The commenters could think of no MACT standard where EPA added controls that changed the targeted industry's products.

Industry commenters highlighted major points made regarding DLA in previous comments on the proposed rule, including: (1) DLA are viable controls and have been demonstrated as a retrofit technology; (2) DLA are the most prevalent control in the industry because DLA achieve essentially the same reductions in emissions ( e.g. , of hydrogen fluoride (HF)), but do not present the same retrofit issues, as the other controls; (3) contrary to previous concerns raised by EPA, DLA have the potential to reduce PM emissions; (4) the small amount of PM that comes from these units has not been shown to contain any significant HAP emissions, and is likely significantly smaller than the already low amount in kiln exhaust; and (5) DLA have been demonstrated as a control that does not interfere with the operation of the kiln ( i.e. , airflow within the kiln). This last point is particularly important to the brick industry, which raised concerns with the other control devices that were considered by EPA. Industry commenters noted that among the controls considered for retrofit purposes, only DLA do not impact the types of products that can be produced, and not impacting the products is critical to the ongoing viability of a brick plant.

Multiple industry commenters agreed with key EPA statements made in the promulgation preamble, specifically where EPA: (1) Concluded that “retrofitting existing kilns with DIFF or DLS/FF systems is not feasible in many cases;” (2) acknowledged that “retrofitting existing BSCP kilns with certain APCD (particularly those that affect kiln airflow) can alter time-honored recipes for brick color, thereby changing the product;” (3) concluded that “DLA are the only currently available technology that can be used to retrofit existing kilns without potentially significant impacts on the production process;” (4) concluded that “it is not technologically and economically feasible for an existing large DLA-controlled kiln that would otherwise meet the criteria for reconstruction in 40 CFR 63.2 * * * to meet the relevant ( i.e. , new source MACT) standards by retrofitting with a DIFF, DLS/FF, or WS;” and (5) concluded that “DIFF and DLS/FF systems, if attempted on smaller kilns, would experience more difficulties with respect to airflow than systems on larger kilns because as the design airflow decreases, the acceptable operating range also would be expected to decrease.” According to the commenters, the petitioners have provided no arguments or technical information that would change these conclusions.

In response, we agree that our decisions at promulgation were a natural progression based on the comments received after proposal regarding the control technologies used in the industry. The comments and additional technical information not available to EPA prior to proposal provided a more complete explanation of the application of DLA and other control technologies to existing kilns in the BSCP source category. The previous comments submitted and referenced by these commenters are included in the official public docket (Docket ID No. OAR-2002-0054). We also agree that there is no new technical information relevant to the MACT floor analysis in the final rule.

Some industry commenters also argued that if EPA does reconsider the DLA-based MACT for the BSCP industry, then decisions at promulgation that stemmed from the DLA-based MACT must also be reviewed. Specifically, EPA must: (1) Reevaluate the use of risk-based alternatives for this rule, and (2) revisit the issue of removing existing DLA from revised MACT determinations. In addition, they stated that EPA must re-propose the rule if the Agency concludes that MACT must be based on anything other than DLA. According to the commenters, numerous facilities have begun to comply with the promulgated rule by installing or committing to install DLA. The commenters stated that the large costs that would be incurred by ripping out a DLA and replacing it with a DIFF, DLS/FF or WS would be unreasonable, unwarranted, and not justified by the minimal benefits that would accrue, assuming the other APCD could be made to work. According to the commenters, those facilities most impacted and penalized would be the environmentally proactive facilities that have installed DLA to reduce emissions even before required by MACT, because they would be ripping out controls less than 2 years old.

As explained further below, based on our evaluation of the reconsideration comments received, EPA is not making any changes to the MACT floors and standards. We acknowledge that changes to the promulgated MACT floor and standards based on DLA control technology could necessitate reevaluation of related decisions; however, since EPA is not making any changes, these comments are not relevant to this action.

Earthjustice, in its comments on behalf of Sierra Club, reiterated its objection, originally stated at proposal, that EPA's decision to base MACT floors on the alleged performance of a control technology is unlawful, arbitrary and capricious. The commenter resubmitted its comments on the proposed rule and its Petition to Reconsider letter. The commenter argued that EPA's decision to base MACT floors on the alleged performance of DLA-equipped kilns contravenes the CAA MACT floor mandate because DLA-equipped kilns are not the best-performing kilns for which EPA has information. The commenter referenced EPA's own data, which indicated that (1) kilns equipped with other control technologies are achieving better emission levels than DLA-equipped kilns, (2) DLA have low hydrogen chloride (HCl) removal efficiencies, (3) DLA do not provide a mechanism for PM removal, and (4) DLA may actually create PM in some instances.

This commenter argued that EPA's statement that “DLA are the only currently available technology that can be used to retrofit existing large kilns without potentially significant impacts on the production process” is statutorily irrelevant. According to the commenter, the CAA requires EPA to set MACT floors regardless of what control equipment the best-performing kilns are using, and EPA cannot choose to ignore that mandate based on its policy preference for setting floors that allegedly reflect what is achievable through using DLA. The commenter stated that EPA's argument that DLA is the only available technology depends largely on arguments irrelevant to MACT floor calculations, e.g. , that retrofitting kilns with other technologies (1) would create solid waste or wastewater that is difficult or expensive to dispose of, and (2) could require kilns to change their recipes or incur downtime or reduction in capacity. The commenter argued that the possibility that other technologies may cost more or require sources to overcome technological difficulties does not support EPA's refusal to consider the performance of kilns equipped with those technologies. The commenter further argued that the record does not support or explain EPA's claim that those technologies may have technical difficulties, e.g. , that they need a different airflow, which might affect brick color. The commenter noted that many existing kilns already are using those other technologies, which shows that it is possible to maintain the airflows and still produce bricks in the colors the manufacturers choose. According to the commenter, EPA's suggestion that changes in airflow might affect brick color is only speculation, based on unsubstantiated and self-serving assertions by industry.

Previous comments submitted at proposal related to DLA control technology and referenced by this commenter are in the official public docket (Docket ID No. OAR-2002-0054). The commenter's Petition to Reconsider letter is part of the docket at OAR-2002-0054-0010. As mentioned previously, one issue from that letter is the focus of this reconsideration action.

In response to these comments, we reviewed our MACT floor analysis and its factual and statutory basis. Contrary to the commenter's claims, there is ample support in the rulemaking record for the concerns expressed by the brick industry about the feasibility of retrofitting existing kilns with DIFF, DLS/FF or WS (unless the existing kiln had been designed and built with that technology). As explained in more detail below, the attempts that have been made to retrofit using DIFF or DLS/FF have not met with success, and we do not have a basis for concluding that the technological obstacles that have been encountered to date can be overcome in the 3 years that existing sources have to comply with the NESHAP. 4 While sources subject to NESHAP typically face challenges in meeting the applicable requirements, here the concern is whether existing BSCP kilns can retrofit APCD without changing the very products they make. As for WS, we continue to believe that retrofits using that technology are only feasible for kilns having access to a sewer system for wastewater disposal. Indeed, a WS system that includes the type of wastewater treatment that would be required in the absence of sewer system access has never been built or demonstrated in the BSCP industry. Based on our review of the rulemaking record, we again conclude that DLA are the only currently available technology that can be used to retrofit existing tunnel kilns without potentially significant impacts on the production process and the resulting product of many kilns.

We also believe that the MACT floor analysis upon which we based the promulgated standards for existing tunnel kilns in the BSCP industry properly took into account the technical obstacles to retrofitting those kilns with available APCD. We disagree that the ability to retrofit a technology to an existing source is irrelevant to the MACT floor. Under CAA section 112(d)(2), EPA is required to set NESHAP that reflect the “maximum degree of reduction in emissions” of the relevant HAP that the Agency, considering various factors, “determines is achievable ” (emphasis added). In surveying existing tunnel kilns, we found that DIFF, DLS/FF and WS were used almost exclusively by kilns that had been designed and built to work with those technologies. Kilns which had been retrofitted with ACPD primarily used DLA because, among other things, that technology, unlike DIFF and DLS/FF, does not affect airflow crucial to product quality and color, and, unlike WS, does not generate large quantities of wastewater. As described in detail below, the kilns that had been retrofitted with DIFF or DLS/FF experienced serious and so far insurmountable problems.

While kilns using DIFF, DLS/FF or WS technologies achieve lower emission rates than kilns using DLA, the CAA does not require that we turn a blind eye to compelling evidence that kilns not already equipped with DIFF, DLS/FF or WS cannot be reliably retrofitted with those technologies without significantly affecting the kiln's production process and its product. On its face, CAA section 112(d) repeatedly calls for “achievable” standards. BSCP facilities that are otherwise similar in terms of kiln type and size are demonstrably dissimilar in their ability to be retrofitted with the various APCD. EPA may appropriately account for technological differences that affect whether a control technology can be feasibly applied to all existing sources that will require additional controls to lower their HAP emissions.

Recognizing these technological issues, we clearly laid out in the final rule preamble the four basic steps taken in determining the MACT floor control level:

(1) We reviewed available data on pollution prevention techniques (including substitution of raw materials and/or fuels) and the performance of add-on control devices to determine the techniques that were viable for and effective at reducing HAP emissions;

(2) For each subcategory, we ranked the kilns from the best performing to the worst performing based on the emission reduction technique used on the kilns;

(3) For each subcategory, we then identified the 94th percentile kiln and the emission reduction technique that represented the MACT floor technology; and

(4) For each subcategory, we then selected production-based or percent-reduction emission limits that correspond to the 94th percentile kiln and emission reduction technique, and we based our selections on the available data while considering variability in the performance of a given emission reduction technique.

A full explanation of the MACT floor and MACT determination is provided in the promulgation preamble (see 68 FR 26698, May 16, 2003).

Key points and information provided by the commenters after proposal included the following: (1) DIFF, DLS/FF, and WS are not demonstrated technologies for retrofitting BSCP kilns; kilns that have used those technologies for a retrofit have experienced significant problems, as explained further below; (2) different products require different airflows to produce distinctive characteristics of the product; (3) DIFF, DLS/FF, and WS require minimum airflow rates to operate properly; (4) DIFF, DLS/FF, and WS affect the product line when process/kiln airflow rates must be changed to accommodate control device operation; (5) DIFF, DLS/FF, and WS result in kiln downtime and reductions in kiln production capabilities; (6) during kiln slowdowns, DIFF, DLS/FF, and WS APCD may not be able to operate at all; (7) DIFF, DLS/FF, and WS produce large amounts of solid waste and wastewater that pose environmental issues of their own; (8) most BSCP facilities are located in areas that do not have available sewer access for WS wastewater; (9) few DIFF, DLS/FF, and WS systems have been developed specifically for brick kilns; (10) DLA do not require minimum airflow rates; (11) lower airflow rates increase the control efficiency of DLA; (12) DLA do not impact kiln operation, airflow, and production level; (13) DLA do not generate PM emissions; (14) DLA do perform over the life of the sorbent; (15) DLA limestone is continually replaced and HF and HCl control efficiencies are maintained; and (16) DLA control technology is applied to brick kilns all over the world, and vendors are experienced in applying the technology to the BSCP industry.

Commenters noted that most of the DIFF, DLS/FF, and WS in place in the BSCP industry have been installed on new kilns, and those that were installed on existing kilns have created problems with kiln operation. Commenters pointed out that all injection and wet control devices need a certain airflow to operate, and because the airflow rate within a brick kiln can vary by 50 percent or more, depending primarily on the size of the product, control systems with any type of injection are problematic. Each product has a given set of kiln operating parameters, and the airflow varies from product to product. Balancing airflow in the kiln is critical to the operation of the kiln. Any changes to the firing characteristics and/or airflow rate that result from the use of DIFF, DLS/FF, and WS controls have an impact on the quality and aesthetic value of the product. If these control devices are used, then the control devices will dictate how the kiln is operated.

Commenters shared their actual experience with DIFF, DLS/FF and WS technologies in retrofit applications. In the case of WS, they noted that short-term pilot tests of WS had encountered significant problems and that full-scale WS had never been used on BSCP kilns (with the exception of one facility, discussed below, that operates two WS). Multiple commenters stated that, rather than being reduced, PM was generated by WS during pilot tests. One commenter stated that, during the 3-month pilot test, the longest time of continuous operation of the WS was 6 days. Following the pilot tests, the facilities chose not to install a full scale WS due to the insurmountable issues. The one facility operating WS has a permit to discharge untreated wastewater to the local sewer system, thus making wet scrubbing a feasible option for that facility. According to a letter submitted by the company, one of the WS at this facility has ongoing problems with fouling of scrubber packing.

With respect to DIFF, commenters explained that the only commercially available retrofit DIFF installation was problematic and still not operating correctly more than 2 years after installation. This system had problems with the dampers and reagent feeding systems. Commenters noted that the original cost for this DIFF was $1 million; however, the facility spent over $2 million without achieving successful operation. Furthermore, another retrofit DIFF installation changed the kiln draft enough to result in kiln capacity reduction from 13.5 to 12.2 cars/day; this was a loss in revenue of $1 million per year. According to commenters, the vendor who installed this DIFF system is no longer in business.

Commenters indicated that the only DLS/FF retrofit that has been attempted is also problematic and led to product quality problems and kiln downtime. This system was a prototype and so had no operational, troubleshooting, or maintenance history, leaving the facility to diagnose operational problems. The vendor who installed this DLS/FF is no longer providing systems to the BSCP industry according to the commenters.

In sum, the commenters provided information showing that few injection ( i.e. , DIFF and DLS/FF) or WS systems have been developed specifically for brick kiln operations, and retrofit experience shows that vendors have been unable to successfully design these systems for retrofit applications in the BSCP industry. Commenters charged that EPA did not account for retrofitting problems associated with installing DIFF, DLS/FF, and WS on older kilns and the costs associated with these problems. Commenters described how attempts at retrofitting kilns with these APCD have resulted in significant kiln downtime and permanent reductions in kiln production capacities. Commenters stated that DIFF and DLS/FF systems produce large amounts of solid waste that is difficult and expensive to dispose of, and use of WS is not practical for most facilities because the facilities have no viable options for wastewater disposal. Commenters also pointed out that there are high costs and marginal additional emissions reductions associated with replacing an existing DLA with a DIFF system.

Based on the many comments received following proposal regarding retrofit concerns with DIFF, DLS/FF, and WS and our own review of all the available information, we concluded that retrofitting existing kilns with these technologies is not feasible in most cases. We note that in addition to comments received from brick manufacturers, we received comments from a kiln vendor and APCD vendors explaining the importance of airflow to kiln operation, product quality and color, and for proper APCD operation; these comments further substantiated many of the claims submitted by industry representatives. We find it particularly compelling that: (1) Attempts to retrofit older kilns with injection systems ( i.e. , DIFF and DLS/FF) have been unsuccessful due to interference with the kiln airflow, such that product quality cannot be maintained, and (2) injection system retrofits have experienced operational problems ( i.e. , settling of lime sorbent in the ductwork and subsequent APCD malfunction, early and unanticipated fabric filter bags failure) during the airflow variations that are necessary for various products. We also find quite compelling the argument that WS are not an option for most BSCP facilities because of limited or no sewer access. Although we also received many comments after proposal regarding the cost of control technologies, our MACT floor decisions are based on what is technically achievable and demonstrated as opposed to cost as section 112(d)(3) of the CAA does not allow consideration of cost when determining MACT floors.

As described above, in the reconsideration proposal notice we asked for additional comments and information on technical issues related to the performance of control technologies, including DLA, DIFF, DLS/FF, and WS. We also requested information on the successful retrofit of DIFF, DLS/FF, and WS on existing tunnel kilns. We received no additional information that would lead us to different conclusions today regarding the MACT floor for existing large tunnel kilns. Therefore, we continue to believe that DLA are the only currently available technology that can be used to retrofit existing large tunnel kilns without potentially significant impacts on the production process.

One commenter also took issue with EPA's decisions on reconstructed sources. Specifically, the commenter rejected as irrelevant EPA's arguments that it would not be technologically and economically feasible for the following reconstructed sources to meet the relevant ( i.e. , new source MACT) standards by retrofitting with a DIFF, DLS/FF, or WS: (1) An existing small tunnel kiln that would otherwise meet the criteria for reconstruction in 40 CFR 63.2, and whose design capacity is increased such that it becomes a large tunnel kiln; and (2) an existing large DLA-controlled tunnel kiln that would otherwise meet the criteria for reconstruction in 40 CFR 63.2. The commenter argued that EPA is not relieved of its statutory obligation to set new source floors reflecting the performance of the best-performing source based on the possibility that some sources may incur costs or have to overcome technological obstacles to match the performance of the relevant best source. According to the commenter, such a possibility also does not allow EPA to simply declare that certain reconstructed BSCP are not subject to these requirements, which the commenter argued would contravene the CAA's definition of “new source” and statutory mandate requiring reconstructed sources to meet new source MACT. The commenter argued that this decision is nothing more than an attempt by EPA to substitute its own views for the plainly expressed intent of Congress. The commenter also argued that EPA missed the point in basing the MACT floor for new small tunnel kilns on the alleged performance of DLA (with EPA concluding that “DLA are the only APCD that have been demonstrated on small tunnel kilns”) because the floor must reflect the actual performance of the single best kiln, not what EPA thinks is achievable through the use of DLA.

Based on the retrofit comments discussed above, the same technological retrofit concerns for existing sources are also relevant to (1) existing small tunnel kilns that are rebuilt such that they become large kilns and (2) existing large DLA-controlled tunnel kilns that are rebuilt. Retrofitting these types of existing kilns with DIFF, DLS/FF, or WS is not feasible. The only currently available technology that can be used to retrofit these reconstructed kilns without potentially significant impacts on the production process is DLA. Additionally, DIFF, DLS/FF, and WS have not been demonstrated for small kilns. Smaller kilns have even smaller airflow rates than larger kilns, and any fluctuations in airflow rates have significant impact on the ability of the DIFF, DLS/FF, or WS to operate correctly. DLA are the only APCD that have been demonstrated on small tunnel kilns, and, therefore, the requirements for new and reconstructed small tunnel kilns were based on the level of control that can be achieved by DLA.

With respect to the commenter's argument that EPA must meet the statutory mandate requiring reconstructed sources to meet new source MACT, we point out that the definition of “Reconstruction” at 40 CFR 63.2 includes the text “* * * to such an extent that * * * it is technologically and economically feasible for the reconstructed source to meet the relevant standard(s) established by the Administrator (or a State) pursuant to section 112 of the Act.” (emphasis added) This regulatory definition, which was promulgated on March 16, 1997 (59 FR 12430) and amended on April 5, 2002 (67 FR 16595), reflects EPA's view that the statutory requirements for reconstructed sources allow for the consideration of both technological and economical issues. In view of the regulatory definition, we believe we correctly identified the MACT floors and standards for reconstructed sources and for new small tunnel kilns.

Multiple commenters expressed concern about EPA's statement in the reconsideration notice that no change in the compliance date is warranted. The commenters argued that the reconsideration process has been slow, and EPA reopened the rule because it did not follow its own proper procedures, neither of which is due to any fault or action by industry. According to these commenters, EPA will have used more than two-thirds of the compliance period for existing sources just to process this reconsideration petition. With the compliance date less than 1 year away, the commenters stated that it may not be possible for the limited number of vendors worldwide to supply every company that needs an APCD in time. One commenter argued that the 1-year case-by-case extension offered by the General Provisions is not a reasonable solution to a systemic problem and creates another burden for industry to apply for and obtain this extension. The commenters argued that EPA should not rely on past precedents for not providing compliance extensions when litigation occurs on a rule, because this is not litigation but reconsideration and because EPA has determined that its rulemaking process has deficiencies that must be corrected. Commenters noted that their industry is composed primarily of small businesses, where a single financial decision, such as which control to install, can have profound impacts on the facility's viability. In light of these concerns, multiple commenters argued that EPA should set a compliance date 3 years from the date that EPA publishes its conclusions on the reconsideration, while other commenters suggested 1-year or 2-year extensions of the compliance date. One commenter indicated that neither EPA nor environmental groups would be affected by an extension.

As mentioned above, section 112(i)(3) of the CAA specifies that NESHAP for existing sources can have compliance deadlines of no more than 3 years. For the BSCP NESHAP, EPA provided the maximum 3 years for covered sources to comply with the new standards. It is not at all unusual for promulgation of CAA standards to be followed by litigation or petitions for reconsideration. CAA section 307(b)(1) specifically provides that the filing of a petition for reconsideration of a rule does not postpone the effectiveness of the rule. The final BSCP rule was effective as of the date of its promulgation and it has remained in effect during the reconsideration period. Sources covered by the final rule have thus remained subject to its requirement for compliance to be achieved by May 16, 2006.

EPA made it clear in its reconsideration notice that the Agency did not believe a change in the compliance date was warranted. We noted that Sierra Club, in its petition for reconsideration, “has not provided information which persuades us that our decision to base the MACT floors on DLA technology is erroneous or inappropriate.” (See 70 FR 21094, April 22, 2005.) We explained that “[i]f we decide to amend the final rule as a result of the reconsideration process, we will reevaluate the compliance date as early as possible.” Covered sources were thus on notice that we were unlikely to change the compliance deadline unless we determined that the final rule should be amended based on new information, and that the petition for reconsideration had not provided any new information.

To date, EPA has not, during the pendancy of a reconsideration request, extended the compliance deadlines for promulgated MACT standards to provide compliance periods in excess of the statutory 3 year maximum. In contrast, only where the Agency has amended a MACT standard in a significant way have we found it appropriate to set a new compliance date for the rule that takes into account new requirements not contained in the original rule. In this case, we decided that no amendments to the standards are warranted, so the final rule and its compliance deadline remain unchanged.

EPA acknowledges that the time to complete the reconsideration has been lengthy, and has comprised approximately 2.5 years of the 3-year compliance period. To the extent any covered source finds it cannot comply with the BSCP NESHAP in the 3 years of lead time provided, it may seek an extension in accordance with 40 CFR 63.6(i)(3). We understand that the majority of the affected businesses are small businesses for which installation of the requisite emission controls entails a significant investment in time and money. The process to install equipment involves the evaluation and selection of a control device and a control device vendor, the application and issuance of a permit from the regulatory authority, the installation of the controls and the potentially lengthy process of insuring that the installed control can meet the MACT limits while still maintaining product quality. Given the small number of controls that have been installed in this industry prior to the standards, and the relatively small number of vendors with an understanding of this industry, some individual facilities may require an extension to come into compliance. We encourage States to make appropriate use of the extension authority granted to them under 40 CFR 63.6(i)(3).

Although commenters acknowledged that we stated in the April 22, 2005, reconsideration notice that we would only address comments on our decision to base MACT for certain tunnel kilns on DLA, they offered comments on other issues as well. These issues are outside the scope of this reconsideration, but we would like to offer a few thoughts on two of the issues raised: The requirement for a daily visual limestone check and the start-up definitions.

Regarding the first of these issues, commenters specifically requested that EPA change the requirement for the daily visual check of the limestone level in the DLA, and cited significant safety hazards and the generation of minimal information associated with climbing to the top of the limestone hopper each day, especially on days with wet, freezing, or windy weather. According to the commenters, better, safer approaches are available to confirm the adequacy of limestone present ( e.g. , monitoring the amount of limestone added and removed from the system, installing numerous level indicators throughout the storage bins to ensure that limestone is flowing, monitoring pressure drop on the scrubber on a daily basis, and monitoring flow as an alternative in systems with recycle). They argued that requesting an alternative monitoring plan under the General Provisions was an avoidable financial burden for each facility when EPA could easily add compliance alternatives to the rule.

Commenters also requested clarification on the start-up definition with respect to the timing of the requirement to vent through a DLA. The commenters disagreed with the dual definition of start-up in the final rule, which depended on the type of control device used, because a facility may not know which control will ultimately be needed for its system. At a minimum, the commenters believed the DLA-based definition should be clarified because there is the potential for confusion. While the kiln may be considered to have reached “initial start-up” at 260 °C (500 °F), there are no known HAP emissions from bricks at this temperature. However, there is still moisture in the exhaust when the kiln first reaches this temperature, and venting through the control device at this temperature could create devastating clogging of the limestone. According to the commenters, bricks are not a source of HAP emissions until they reach a temperature at which dehydroxylation occurs (500-600 °C (932-1112 °F)). At a minimum, the commenters believed EPA should clarify that, while the kiln may be considered “started,” this does not mean that the exhaust must be vented through the control device.

We would like to address these issues at least to some extent in this action since they pertain to compliance with the promulgated MACT standards. The compliance requirement to verify that the limestone hopper and storage bin contain adequate limestone by performing a daily visual check is not limited to being met only by climbing to the top of the limestone hopper each day. Other methods of visually confirming that the hopper and storage bin contain adequate limestone could include some type of visual access point ( e.g. , a window) on the side of the hopper, installing a camera in the hopper that provides continuous feed to a video monitor in the control room (a common practice in other mineral products industries), or confirming that load level indicators in the hopper are not indicating the need for additional limestone. With respect to the start-up definitions, the final rule's definitions of start-up are based on public comments regarding DIFF-, DLS/FF-, and WS-controlled kilns and information from an owner of DLA-controlled kilns. If in the future it is determined that revisions to the compliance requirements or start-up definitions in the final rule are warranted, they will be addressed at that time in a rule amendment.

On May 16, 2003, we published the final NESHAP for BSCP manufacturing pursuant to section 112 of the CAA. With today's action, we are promulgating no changes to the final rule. Accordingly, we believe that the rationale provided with the final BSCP rule is still applicable and sufficient.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is “significant” and, therefore, subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been determined that today's action does not constitute a “significant regulatory action” because it does not meet any of the above criteria. Consequently, this action was not submitted to OMB for review under Executive Order 12866.

This action does not impose any new information collection burden. We are not promulgating any new paperwork ( e.g. , monitoring, reporting, recordkeeping) as part of today's final action. The OMB has previously approved the information collection requirements contained in the final rule (40 CFR part 63, subpart JJJJJ) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. , and has assigned OMB control number 2060-0508 (EPA ICR number 2022.02) for the BSCP rule. A copy of the OMB approved Information Collection Request (ICR) may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-1672.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the reconsideration of one issue arising from the final rule, since the reconsideration did not result in a proposed change to final rule.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed, under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA's regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that today's action does not contain a Federal mandate 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 1 year. At promulgation of the BSCP rule, we estimated a total annual cost of $24 million for any 1 year. Because today's action results in no changes to the final rule, the estimated total annual cost for the final BSCP rule remains the same, and today's action will not increase regulatory burden to the extent of requiring expenditures of $100 million or more by State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. Thus, today's action is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, the EPA has determined that today's action contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no regulatory requirements that apply to such governments or impose obligations upon them. Therefore, today's action is not subject to the requirements of section 203 of the UMRA.

Executive Order 13132 (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” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless EPA consults with State and local officials early in the process of developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and EPA's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, it must include a certification from EPA's Federalism Official stating that EPA has met the requirements of Executive Order 13132 in a meaningful and timely manner.

Today's action does not have federalism implications. It does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Because we are not promulgating any changes to the final rule, today's action will not increase regulatory burden to the extent that it would result in substantial direct effects on the States. Thus, the requirements of Executive Order 13132 do not apply to today's action.

Executive Order 13175 (65 FR 67249, November 6, 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.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

Today's action does not have tribal implications. The final BSCP rule, which today's action does not change, will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. No tribal governments are known to own or operate BSCP manufacturing facilities. Thus, Executive Order 13175 does not apply to the final rule or today's action.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns the environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the rule. Today's action is not subject to Executive Order 13045 because the final BSCP rule, which today's action does not change, is based on technology performance and not on health or safety risks.

Executive Order 13211 (66 FR 28355, May 22, 2001) provides that agencies shall prepare and submit to the Administrator of the Office of Information and Regulatory Affairs, OMB, a Statement of Energy Effects for certain actions identified as “significant energy actions.” Section 4(b) of Executive Order 13211 defines “significant energy actions” as “any action by an agency (normally published in the Federal Register ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.”

Today's action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866 nor is it likely to have a significant adverse effect on the supply, distribution, or use of energy.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory and procurement 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, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when an agency does not use available and applicable voluntary consensus standards.

Today's action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Entities potentially regulated by this action are those that manufacture and sell commercial aircraft engines and aircraft in the United States. Regulated categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your activities are regulated by this action, you should carefully examine the applicability criteria in 40 CFR 87.20 (part 87). If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Docket. EPA has established an official public docket for this action under Docket ID No. OAR-2002-0030 at http://www.epa.gov/edocket. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. The public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Air Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1742, and the telephone number for the Air Docket is (202) 566-1742.

Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified above. Once in the system, select “search,” then key in the appropriate docket identification number.

Section 231(a)(2)(A) of the Clean Air Act (CAA) directs the EPA Administrator to “issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft or aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. 7571(a)(2)(A). In addition, section 231(a)(3) provides that after we propose standards, the Administrator shall issue such standards “with such modifications as he deems appropriate.” 42 U.S.C. 7571(a)(3). Under this authority EPA has conducted several rulemakings since 1973 establishing emission standards and related requirements for several classes (commercial and general aviation engines) of aircraft and aircraft engines. Most recently, in 1997 EPA promulgated NO X emission standards for newly manufactured gas turbine engines of already certified models  1 (those individual engines that are part of an already certified engine model, but are built after the effective date of the regulations for such engines and have never been in service)  2 and for newly certified gas turbine engines (those engines designed and certified after the effective date of the regulations  3 ). 4 In addition, EPA promulgated a carbon monoxide (CO) emission standard for newly manufactured gas turbine engines in this same 1997 rulemaking. At the time, the 1997 rulemaking established consistency between the U.S. and international standards. (See 40 CFR part 87 for a description of EPA's aircraft engine emission control requirements and 14 CFR part 34 for the Department of Transportation's regulations for ensuring compliance with these standards in accordance with section 232 of the Clean Air Act.)

Since publication of the initial standards in 1973, EPA, together with the Federal Aviation Administration (FAA), has worked with the International Civil Aviation Organization (ICAO) on the development of international aircraft engine emission standards. ICAO was established in 1944 by the United Nations (by the Convention on International Civil Aviation, the “Chicago Convention”) “* * * in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically.”  5 ICAO's responsibilities include developing aircraft technical and operating standards, recommending practices, and generally fostering the growth of international civil aviation.

In 1972 at the United Nations Conference on the Human Environment, ICAO's position on the human environment was developed to be the following: “[i]n fulfilling this role ICAO is conscious of the adverse environmental impact that may be related to aircraft activity and its responsibility and that of its member States to achieve maximum compatibility between the safe and orderly development of civil aviation and the quality of the human environment.” Also, in 1972 ICAO established the position to continue “* * * with the assistance and cooperation of other bodies of the Organization and other international organizations * * * the work related to the development of Standards, Recommended Practices and Procedures and/or guidance material dealing with the quality of the human environment * * *.”  6 At the 35th Assembly in October 2004, ICAO's 188 Contracting States affirmed that ICAO should continue to take the leadership role in all international civil aviation matters relating to the environment. 7

The United States is one of 188 participating member States of ICAO. 8 Under the basic ICAO treaty established in 1944 (the Chicago Convention), a participating nation which elects not to adopt the ICAO standards must provide a written explanation to ICAO describing why a given standard is impractical to comply with or not in its national interest. 9 ICAO standards require States to provide written notification and failure to provide such notification could have negative consequences as detailed below.

If a Contracting State files a written notification indicating that it does not meet ICAO standards, other Contracting States are absolved of their obligations to “recognize as valid” the certificate of airworthiness issued by that Contracting State, since that certificate will not have been issued under standards “equal to or above” ICAO standards. In other words, other Contracting States do not have to allow aircraft belonging to that Contracting State to travel through their airspace. 10 Further, if it fails to file a written notification, it will be in default of its obligations, and risks mandatory exclusion of its aircraft from the airspace of other Contracting States and the loss of its voting power in the Assembly and Council. 11

The Chicago Convention does not require all Contracting States to adopt identical airworthiness standards. Although the Convention urges a high degree of uniformity, it is expected that States will adopt their own airworthiness standards, and it is anticipated that some states may adopt standards that are more stringent than those agreed upon by ICAO. However, because any State can ban use within its airspace of any aircraft that does not meet ICAO standards, States that wish to use aircraft in international air transportation have agreed to adopt standards that meet or exceed the stringency levels of ICAO standards. 12 Because States are required to recognize certificates of any State whose standards meet or exceed ICAO standards, a State is assured its aircraft will be permitted to operate in any other Contracting State if its standards meet or exceed the minimum stringency levels of ICAO standards.

As long as a participating nation of ICAO adopts aircraft emission standards that are equal to or more stringent than ICAO's standards, the certificates of airworthiness for such nations are valid. Thus, aircraft belonging to countries with more stringent standards are permitted to travel through the airspace of other countries without any restriction. To ensure operation internationally without constraints, a participating nation which elects to adopt more stringent standards is obligated to notify ICAO of the differences between its standards and ICAO standards. 13 However, if a nation sets tighter standards than ICAO, air carriers not based in that nation (foreign-flag carriers) would only be required to comply with the ICAO standards.

The ICAO Council's Committee on Aviation Environmental Protection (CAEP) undertakes ICAO's technical work in the environmental field. The CAEP is responsible for evaluating, researching, and recommending measures to the ICAO Council that address the environmental impact of international civil aviation. CAEP is composed of various Study Groups, Work Groups, Committees and other contributing memberships that include atmospheric, economic, aviation, environmental, and other professionals committed to ICAO's previously stated position regarding aviation and the environment. At CAEP meetings, the United States is represented by the FAA, which plays an active role at these meetings (see section VI for further discussion of FAA's role). EPA has historically been a principal participant in the development of U.S. policy in ICAO/CAEP and other international venues, assisting and technically advising FAA on aviation emissions matters. If the ICAO Council adopts a CAEP proposal to adopt a new environmental standard, it then becomes part of the ICAO standards and recommended practices (Annex 16 to the Chicago Convention). 14

On June 30, 1981, the ICAO Council adopted its first international standards and recommended practices covering aircraft engine emissions. 15 These standards limit aircraft engine emissions of NO X , CO, and hydrocarbons (HC), in relation to other engine performance parameters, and are commonly known as stringency standards. On March 24, 1993, the ICAO Council approved a proposal adopted at the second meeting of the CAEP (CAEP/2) to tighten the original NO X standard by 20 percent and amend the test procedures. At the next CAEP meeting (CAEP/3) in December 1995, the CAEP recommended a further tightening of 16 percent and additional test procedure amendments, but on March 20, 1997 the ICAO Council rejected this stringency proposal and approved only the test procedure amendments. At its next meeting (CAEP/4) in April 1998, the CAEP adopted a similar 16 percent NO X reduction proposal, which the ICAO Council approved on February 26, 1999. 16 The CAEP/4 16 percent NO X reduction standard applies to new engine designs certified after December 31, 2003 ( i.e. , it applies only to newly certified engines, rather than to newly manufactured engines of already certified models). 17 18

As discussed earlier, in 1997 EPA amended its regulations to adopt the 1981 ICAO NO X and CO emission standards, as well as the NO X emission standards and test procedures revised by ICAO in 1993. As discussed above, the U.S. has an obligation under the Convention on International Civil Aviation to notify ICAO regarding differences between U.S. standards and ICAO standards, and to provide notification on the date by which the program requirements will be consistent. In response to the recent actions by ICAO and for the reasons discussed below, in today's rulemaking EPA is adopting standards for newly certified engines that are equivalent to ICAO's 1999 amendment to the NO X emission standard and the test procedure changes approved by ICAO in 1997, and EPA is adopting other technical amendments to further align EPA and ICAO requirements.

As discussed earlier, section 231 of the CAA directs EPA, from time to time, to propose aircraft engine emission standards applicable to the emission of any air pollutant from classes of aircraft engines which in its judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare. 42 U.S.C. 7571(a)(2)(A). Section 231(a)(3) provides that after we propose standards, the Administrator shall issue such standards “with such modifications as he deems appropriate.” 42 U.S.C. 7571(a)(3). In addition, EPA is required to ensure, in consultation with the Secretary of Transportation, that such standards' effective dates provide the necessary time to permit the development and application of the requisite technology, giving appropriate consideration to compliance cost. 42 U.S.C. 7571(b). Also, EPA must consult with the FAA before proposing or promulgating emission standards. 42 U.S.C. 7571(a)(2)(B)(i). (See section VI of today's proposal for further discussion of EPA's coordination with FAA and FAA's responsibilities under the CAA.)

In addition, section 233 of the CAA vests authority to implement emission standards for aircraft or aircraft engines only in EPA. 19 States are preempted from adopting or enforcing any standard respecting aircraft engine emissions unless such standard is identical to EPA's standards. 42 U.S.C. 7573.

As mentioned above, section 231(a)(2)(A) of the CAA authorizes the Administrator to “from time to time, issue proposed emission standards applicable to emission of any air pollution from any class or classes of aircraft or aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. 7571(a)(2)(A).

One of the principal components of aircraft exhaust emissions is NO X . NO X is a precursor to the formation of ozone. 20 Many commercial airports are located in urban areas and many of these areas have ambient ozone levels above the National Ambient Air Quality Standards (NAAQS) for ozone ( i.e. , they are in nonattainment for ozone). This section discusses the contribution of aircraft engines to the national NO X emissions inventory and the health and welfare impacts of these emissions.

EPA's estimate of the contribution of aircraft to the national NO X emission inventory is set out in Table II.A-1. Note that this table provides the inventory contributions only for 2001, and therefore does not take into account the impacts of our recent mobile source emission control programs for highway vehicles and nonroad engines and equipment which will go into effect in the coming years. 21 Those new standards are expected to reduce NO X emissions from highway and nonroad engines by 90 percent or more on a per-engine basis. (Nor does the table account for aviation's reduced NO X emissions due to slower growth and changes in fleet composition after 2001.) Nonetheless, as these new programs go into effect, the relative size of the contribution of aircraft to national NO X levels may increase due to the decrease in the contribution of those other mobile sources.

Aircraft emissions are emitted from a variety of aircraft types used for public, private, and military purposes including commercial aircraft, air taxis, general aviation, and military aircraft. 22 Commercial aircraft emissions contribute from 74 to 99 percent of the NO X aircraft emissions in the U.S. The high end of this range represents commercial aircraft's fraction of national aircraft NO X emissions when current estimates for all aircraft types (commercial aircraft, air taxis, general aviation, and military aircraft) are added together. 23 The lower end of the range is commercial aircraft's contribution of NO X aircraft emissions in the U.S. when combining earlier  24 military aircraft estimates with current emission estimates for the three other aircraft types (the earlier and current estimates were based on different methods or models for calculating aircraft emissions in 2001). This range was provided since the current estimates of military aircraft emission have limitations— i.e. , military aircraft estimates are a conservative estimate as they reflect military operations only at FAA and FAA-contracted facilities and not at military bases. For a discussion on obtaining improved military aircraft emission estimates, see Section 5 of the Summary and Analysis of Comments for this rulemaking. (See the following memorandum for a further description of the contribution of military aircraft to total aircraft emissions: U.S. EPA, “Earlier and Current Estimates of Military Aircraft Emissions (Updated),” Memorandum to Docket OAR-2002-0030 from Bryan Manning (Document No. OAR-2002-0030-0214), May 11, 2005.)

While the current contribution of aircraft to nationwide NO X is less than one percent, their contribution on a local level, especially in areas containing or adjacent to airports can be much larger and is also expected to grow. This is illustrated by EPA's 1999 study that examined NO X emissions from aircraft for ten cities: Atlanta, Boston-Lawrence-Worcester, Charlotte-Gastonia, Chicago-Gary-Lake County, Houston-Galveston-Brazoria, New York-New Jersey-Long Island, Philadelphia, Phoenix, Los Angeles Air Basin and Washington DC. 25 26 Nineteen airport facilities with significant commercial jet aircraft activity were identified within these selected areas. On average for these ten cities, commercial aircraft's contribution is expected to increase from about 2 percent of regional total NO X emissions in 1990 to about 5 percent in 2010.

It should be noted that the above study of the impacts of airports on regional air quality was conducted before the tragic events of September 11, 2001, and the economic downturn in the aircraft transportation sector and resulting slowing of emissions growth. A report by the Department of Transportation in 2003 indicated that the combination of the September 11, 2001 terrorist attacks and cut-backs in business travel have had a significant effect on air transportation demand. 27 The FAA expects the demand for air travel to recover and then continue a long-term trend of annual growth, though from a lower base and a slower rate in the United States. 28 Thus, there is both a short-term decrease in aircraft transportation activity as a result of 9/11, with negative growth for a few years and associated decreases in aircraft emission contributions and lower emissions growth than originally anticipated over the time period assessed. This is illustrated in Table II.A-2, which compares the results of an earlier, pre-9/11 FAA activity forecast to a recent, post-9/11 forecast. As operations increase, the inventory impact of these aircraft on national and local NO X inventories and on ozone levels will also increase.

The data in Table II.A-2 show that prior to 9/11 growth in air carrier and commuter/air taxi operations was expected to increase by 34 percent from 2000 to 2015. 29 The revised growth forecast for this period estimates that aircraft activity will now increase only 22 percent in the period 2000-2015. In fact, the originally anticipated operation levels in 2015 are now forecast not to be reached until 2020. 30

Aircraft emissions are a large portion of total emissions associated with airports. Air pollutants resulting from airport operations are emitted from several types of sources including aircraft main engines and auxiliary power units (APUs); ground support equipment (GSE), which includes vehicles such as aircraft tugs, baggage tugs, fuel trucks, maintenance vehicles, and other miscellaneous vehicles used to support aircraft operations; and ground access vehicles (GAV), which include vehicles used by passengers, employees, freight operators, and other persons to enter and leave an airport. EPA estimates that aircraft engines comprise approximately 45 percent of total air pollutant emissions from airport operations. GAV account for another 45 percent and APUs and GSE combined make up the remaining 10 percent. 31 32 Since EPA has established stringent emission standards for GAVs and other highway and nonroad vehicles used at airports, overall emissions from these vehicles will continue to decline for many years. This means that aircraft will contribute an increasing portion of total emissions associated with airport operations.

NO X emissions from commercial aircraft and other mobile and stationary sources contribute to the formation of ozone. In addition, NO X emissions at low altitude also react in the atmosphere to form secondary particulate matter (PM 2.5 ), particularly ammonium nitrate, and contribute to regional haze. 33 The NO X standards adopted in this rule will help reduce ambient ozone and potentially secondary PM levels and thus will help areas with airports achieve and/or maintain compliance with the NAAQS for ozone and potentially PM. 34 In the following section we discuss the adverse health and welfare effects associated with NO X emissions.

NO X is a precursor in the photochemical reaction which forms tropospheric ozone. Ground-level ozone, the main ingredient in smog, is formed by complex chemical reactions of VOCs and NO X in the presence of heat and sunlight. The health effects of ozone pollution are described in detail in EPA's Air Quality Criteria Document for Ozone and Other Photochemical Oxidants and are also described in the Final Regulatory Analysis for our recent Clean Air Nonroad Diesel rule. 35 The following is a summary of those effects.

Ozone can irritate the respiratory system, causing coughing, throat irritation, and/or uncomfortable sensation in the chest. In addition, ozone can reduce lung function and make it more difficult to breathe deeply, and breathing may become more rapid and shallow than normal, thereby limiting a person's normal activity. Ozone also can aggravate asthma, leading to more asthma attacks that require a doctor's attention and/or the use of additional medication. In addition, ozone can inflame and damage the lining of the lungs, which may lead to permanent changes in lung tissue, irreversible reductions in lung function, and a lower quality of life if the inflammation occurs repeatedly over a long time period. People who are of particular concern with respect to ozone exposures include children and adults who are active outdoors. Those people particularly susceptible to ozone effects are people with respiratory disease, such as asthma, people with unusual sensitivity to ozone, and children. Beyond its human health effects, ozone has been shown to injure plants, which has the effect of reducing crop yields and reducing productivity in forest ecosystems. 36 37

New research suggests additional serious health effects beyond those that were known when the ozone NAAQS was revised in 1997. Between 1997 and a 2002 literature review, over 1,700 new health and welfare studies relating to ozone have been published in peer-reviewed journals. 38 Many of these studies investigate the impact of ozone exposure on such health effects as changes in lung structure and biochemistry, inflammation of the lungs, exacerbation and causation of asthma, respiratory illness-related school absence, hospital and emergency room visits for asthma and other respiratory causes, and premature mortality. EPA is currently evaluating these and other studies as part of the ongoing review of the air quality criteria and NAAQS for ozone. A revised Air Quality Criteria Document for Ozone and Other Photochemical Oxidants will be prepared in consultation with EPA's Clean Air Science Advisory Committee (CASAC). 39 Key new health information falls into four general areas: development of new-onset asthma, hospital admissions for young children, school absence rate, and premature mortality. In all, the new studies that have become available since the 8-hour ozone standard was adopted in 1997 continue to demonstrate the harmful effects of ozone on public health and the need for areas with high ozone levels to attain and maintain the NAAQS.

There is currently one ozone NAAQS, an 8-hour standard. The 8-hour ozone standard is met when the fourth highest daily maximum 8-hour average ozone concentration measured over a 3-year period is less than or equal to 0.084 parts per million (ppm). The former 1-hour ozone standard was revoked in June 2005. 40

This final rule reflects the administrative action of changing the address of the Arizona State Office of the BLM. It changes the street address for the personal filing of documents relating to public lands in Arizona, but makes no other changes in filing requirements. The BLM has determined that it has no substantive impact on the public, imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public. The Department of the Interior, therefore, for good cause finds under 5 U.S.C. 553 (b)(B) and 553 (d)(3) that notice and public comment procedures are unnecessary and that the rule may take effect upon publication.

This final rule is an administrative action to change the address for one BLM State Office. This rule was not subject to review by the Office of Management and Budget under Executive Order 12866. It imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public.

This final rule is a purely administrative regulatory action having no effect upon the public or the environment, it has been determined that the rule is categorically excluded from review under section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

Congress enacted the Regulatory Flexibility Act of 1980 (5 U.S.C. 601, et seq. ) to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. This final rule is a purely administrative regulatory action having no effects upon the public or the environment, it has been determined that the rule will not have a significant effect on the economy or small entities.

This final rule is a purely administrative regulatory action having no effects upon the public or the economy. This is not a major rule under Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). It should not have an annual effect on the economy of $100 million or more. The rule will not cause a major increase in costs of prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. It will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

The BLM has determined that the final rule is not significant under the Unfunded Mandates Reform Act of 1995 because it will not result in the expenditure by State, local, and tribal governments, in the aggregates, or by the private sector, of $100 million or more in any one year.

Further, the final rule will not significantly or uniquely affect small governments. It does not require action by any non-federal government entity. Therefore, the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et. seq. ), is not required.

As required by Executive Order 12630, the Department of the Interior has determined that the rule would not cause a taking of private property. No private property rights would be affected by a rule that merely reports an address change for the Arizona State Office. The Department therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.

In accordance with Executive Order 13132, the BLM finds that the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. The final rule does not have substantial direct effects on the States, on the relationship between the national governments and the States, or the distribution of power and the responsibilities among the various levels of government. This final rule does not preempt State law.

This final rule is a purely administrative regulatory action having no effects upon the public and will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

In accordance with the Executive Order 13175, the BLM finds that the rule does not include policies that have tribal implications. This final rule is a purely an administrative action having no effects upon the public or the environment, imposing no costs, and merely updating the BLM, Arizona State Office address included in the Code of Federal Regulations.

In accordance with the Executive Order 13211, the BLM has determined that the final rule will not have substantial direct effects on the energy supply, distribution or use, including a shortfall in supply or price increase. This final rule is a purely administrative action and has no implications under Executive Order 13211.

The Paperwork Reduction Act does not apply because the rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

The principal author of this rule is Diane O. Williams, Regulatory Affairs Group (WO 630).

On April 6, 2004, the agency published a final rule extending the anti-theft parts marking requirements (Part 541) to (1) all below median theft rate passenger cars and multipurpose passenger vehicles (MPVs) that have a gross vehicle weight rating (GVWR) of 6,000 pounds or less, and (2) all below median theft rate light duty trucks with a GVWR of 6,000 pounds or less and major parts that are interchangeable with a majority of the covered major parts of passenger cars or MPVs subject to the parts marking requirements. 1 (69 FR 17960) The Anti Car Theft Act of 1992 required this final rule unless the Attorney General made a finding that the extension would not substantially inhibit chop shop operations and motor vehicle thefts. The final rule is effective September 1, 2006.

On May 19, 2005, the agency published a final rule responding to petitions for reconsideration of the 2004 final rule. 2 Among other things, the May 2005 final rule excluded vehicle lines with annual production of not more than 3,500 vehicles from parts marking requirements because the benefits of marking these vehicle lines would be trivial or of no value. This exclusion applies to all vehicle manufacturers regardless of overall production volume. We also adopted a phase-in of the new parts marking requirements over a two-year period. Specifically, car lines representing not less than 50% of a manufacturer's production of vehicle lines that were not subject to parts marking requirements before September 1, 2006, must be marked effective September 1, 2006. The remaining vehicle lines must be marked effective September 1, 2007. Vehicle lines already subject to parts marking requirements are unaffected by this phase-in.

The agency received a petition for reconsideration of the May 2005 final rule, from the International Association of Auto Theft Investigators. The petition asked the agency to reconsider the phase-in and the small volume exemption.

With regard to the phase-in, the petition provided no argument on why the agency should reconsider the phase-in. In deciding to adopt the phase-in, the agency balanced the benefits of parts marking against the practical burdens associated with implementing the expansion of parts marking. The agency decided to adopt the phase-in because the expanded time frame eliminates any argument about the practicability of expanding parts marking. The petitioner stated their objection to the phase-in, but provided no information indicating that the expansion would be practicable without it.

With regard to the small volume exemption, the petitioner argues that this is a “Small Business Exemption,” and that allowing large companies to claim such an exemption was not the intent of Congress. The agency's decision to exclude small volume vehicle lines was not based on the size of the manufacturer. Instead, the agency's decision was based on an analysis that the benefits of marking small volume vehicle lines would be de minimis . The petitioner provided no explanation as to why this analysis was incorrect.

For these reasons, the agency is denying the International Association of Auto Theft Investigators' petition. In accordance with 49 CFR part 553, this completes the agency review of the petition for reconsideration.