13518 Federal Register / Vol. 73, No. 50 / Thursday, March 13, 2008 / Proposed Rules 

Issued in Fort Worth, Texas, on March 4, 

2008. 

David A. Downey, 

Manager, Rotorcraft Directorate, Aircraft 

Certification Service. 

[FR Doc. E8–5068 Filed 3–12–08; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 86 

[EPA–HQ–OAR–2006–0072; FRL–8539–4 

RIN 2060–069 

In-Use Testing for Heavy-Duty Diesel 

Engines and Vehicles; Emission 

Measurement Accuracy Margins for 

Portable Emission Measurement 

Systems and Program Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: In a rule published on June 

14, 2005, EPA established a 

manufacturer-run, in-use testing 

program for heavy-duty diesel vehicles. 

The program requires engine 

manufacturers to measure exhaust 

emissions from their diesel engines 

using portable emissions measurement 

systems during real-world operation. At 

the time the rule was promulgated, EPA 

established interim emission 

measurement ‘‘accuracy’’ margins for 

the requisite portable emission 

measurement devices pending the 

development of final accuracy margins 

through a comprehensive research 

program. This notice proposes to adopt 

the resulting final accuracy margins for 

gaseous pollutants. Also, this rule 

proposes to make several changes to the 

program in the early years of in-use 

testing. First, we are proposing to 

eliminate the first calendar year, i.e., 

2006, of the two-year pilot program for 

particulate emissions (PM) in response 

to engine manufacturers’ concerns, 

which primarily relate to the availability 

and efficacy of the requisite portable 

measurement systems (PEMS) for that 

pollutant. Second, due to a delay in 

developing the final accuracy margin for 

PM under the aforementioned 

comprehensive research program, we 

are proposing to delay the first year of 

the fully enforceable PM test program 

from the 2008 calendar year to the 2009 

calendar year. During the 2008 calendar 

year, there will be another year of pilot 

program testing for that pollutant. 

Third, and finally, we are proposing to 

extend the normal period for reporting 

in-use test results and allowing certain 

short-term changes in how vehicles are 

recruited and tested. These proposed 

revisions are primarily intended to 

address delays in initiating the gaseous 

emission and PM pilot programs, 

manufacturers’ concerns regarding the 

schedule for initial purchases of PM 

measurement systems, and 

manufacturers’ concerns regarding 

potential difficulties of initially 

instrumenting vehicles with these units. 

DATES: Written comments must be 

received by April 14, 2008. Request for 

a public hearing must be received by 

March 28, 2008. If we receive a request 

for a public hearing, we will publish 

information related to the timing and 

location of the hearing and the timing of 

a new deadline for public comments. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ–

OAR–2004–0072, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–9744. 

• Mail: Environmental Protection 

Agency, Mail Code: 2822T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460. Please include two copies. 

• Hand Delivery: U.S. Environmental 

Protection Agency, EPA Headquarters 

Library, EPA West Building, Room 

3334, 1301 Constitution Avenue, NW., 

Washington, DC. Such deliveries are 

only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2004–

0072. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through www.regulations.gov your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/oar/dockets.html. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the EPA Docket Center, EPA West 

Building, EPA Headquarters Library, 

Room 3334, 1301 Constitution Avenue, 

N.W., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566–

1742. 

FOR FURTHER INFORMATION CONTACT: 

Richard Wilcox, Assessment and 

Standards Division, Office of 

Transportation and Air Quality, 2000 

Traverwood Drive, Ann Arbor, MI 

48105; telephone number: (734) 214–

4390; fax number: (734) 214–4939; email address: wilcox.rich@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

In the ‘‘Rules and Regulations’’

section of this Federal Register, we are 

making these revisions as a direct final 

rule without prior proposal because we 

view these revisions as noncontroversial 

and anticipate no adverse comment. 

We have explained our reasons for 

these revisions in the preamble to the 

direct final rule. If we receive no 

adverse comment, we will not take 

further action on this proposed rule. If 

we receive adverse comment on the 

rule, we will withdraw the direct final 

rule. We will address all public 

comments in a subsequent final rule 

based on this proposed rule. We will not 

institute a second comment period on 


rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 73, No. 50 / Thursday, March 13, 2008 / Proposed Rules 13519 

1See ‘‘Control of Emissions of Air Pollution From 

New Motor Vehicles: In-Use Testing for Heavy-Duty 

Diesel Engines and Vehicles, 70 FR 34594 (June 14, 

2005).’’

2The emission measurement accuracy margin 

added to the value of the applicable NTE standard 

and any in-use compliance testing margin that is 

already allowed by the regulations to determine the 

numerical compliance limit, i.e., NTE threshold, 

which is used in the in-use testing program. 

3The in-use testing requirements consist of a twoyear pilot program for gaseous emissions (i.e., 

NMHC, NoX, and CO) in calendar years 2005 and 

2006, and calendar years 2006 and 2007 for PM 

emissions. This NPRM proposes to change the years 

of the PM pilot program to calendar years 2007 and 

2008. The programs are fully enforceable after their 

respective pilot program ends. 

this action. Any parties interested in 

commenting must do so at this time. 

II. Does This Action Apply to Me? 

This action will affect companies that 

manufacture and certify heavy-duty 

diesel engines and vehicles for use on 

the highway. 

Category NAICS Code a Examples of potentially affected entities 

Industry .............. 336112 Engine and Truck Manufacturers. 

336120 

Industry .............. 811112 Independent commercial importers of vehicles and parts. 

81198 

a North American Industry Classification System (NAICS). 

To determine whether particular 

activities may be affected by this action, 

you should carefully examine the 

regulations. You may direct questions 

regarding the applicability of this action 

as noted in FOR FURTHER INFORMATION

CONTACT. 

III. What Should I Consider as I 

Prepare My Comments for EPA? 

A. Submitting CBI. Do not submit this 

information to EPA through 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR Part 2. 

B. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

IV. Summary of Rule 

The manufacturer-run, in-use testing 

program for heavy-duty diesel vehicles 

that are used on the highway was 

promulgated in 2005 to monitor the 

emissions performance of the engines 

used in those vehicles when operated 

under a wide range of real world driving 

conditions1 The program is specifically 

intended to monitor compliance with 

the applicable Not-to-Exceed (NTE) 

exhaust emission standards for nonmethane hydrocarbons (NMHC), oxides 

of nitrogen (NOX), carbon monoxide 

(CO), and particulate matter (PM). It 

requires each manufacturer of heavyduty highway diesel engines to assess 

the in-use exhaust emissions from their 

engines using onboard, portable 

emission measurement systems during 

typical operation while on the road. 

A. Gaseous Emission Measurement 

Margins for Manufacturer-Run, In-Use 

Testing 

For the purposes of the in-use testing 

program, it was necessary to establish 

emission measurement ‘‘accuracy’’

margins for the portable emission 

measurement system.2 They are 

primarily designed to account for any 

differences between the accuracy of the 

onboard, portable emission 

measurement instruments and the 

accuracy of the instruments used during 

laboratory testing in the emissions 

certification process. When the in-use 

testing program was first established in 

2005, there was uncertainty regarding 

what specific accuracy margins should 

be used in the in-use testing program, 

since the portable measurement systems 

had not been rigorously tested at that 

time. As a result, we promulgated 

interim accuracy allowances for use in 

the pilot programs for gaseous 

pollutants and PM.3

Shortly before the in-use test program 

was promulgated, EPA entered into an 

memorandum of agreement (MOA) with 

the California Air Resources Board 

(CARB) and the manufacturers of heavyduty highway diesel engines (through 

the Engine Manufacturers Association 

(EMA)) to develop ‘‘data driven’’

emission measurement allowances 

through a comprehensive research, 

development, and demonstration 

program for the enforceable programs, 

i.e., beginning in the 2007 calendar year 

for gaseous emissions and the 2008 

calendar year for PM. The overall test 

program was designed to be completed 

in two phases. The first phase addressed 

gaseous emission accuracy margins and 

the second phase addressed PM 

emission accuracy margins. All parties 

agreed to support the final accuracy 

margins assuming that the agreed upon 

test program was followed and the 

results incorporated into a direct final 

rulemaking, or a subsequent final 

rulemaking (preceded by proposed 

rulemaking) if adverse comment was 

received on the direct final rule. 

The cooperative test program and 

additional follow-on development work 

for gaseous emissions have now been 

completed, and a resultant set of final 

emission measurement accuracy 

margins has been identified for use in 

the fully enforceable program that 

begins in 2007. The gaseous emission 

measurements accuracy margins vary 

based on the model year of the engine 

and the emission calculation 

methodology that is used to determine 

the final grams/brake horsepower-hour 


rwilkins on PROD1PC63 with PROPOSALS
13520 Federal Register / Vol. 73, No. 50 / Thursday, March 13, 2008 / Proposed Rules 

4See 40 CFR 86.1935. 

emission. The proposed values are 

shown in Table 1. 

TABLE 1.—FINAL MEASUREMENT ACCURACY MARGINS FOR THE ENFORCEABLE GASEOUS EMISSIONS IN-USE TESTING

PROGRAM

Pollutant 

Accuracy margins 

(g/bhp-hr) 

2007–2009 

model year engines 

2010 and later 

model year engines 

Method 1 only Methods 2 and 3 All methods 

NMHC .................................................................................................................. 0.02 0.01 0.01 

CO ........................................................................................................................ 0.5 0.25 0.25 

NOX ...................................................................................................................... 0.45 0.15 0.15 

B. NMHC NOx In-Use Testing Accuracy 

Margins 

The June 2005 final rule that 

implemented the in-use testing program 

addressed accuracy margins for each of 

the gaseous pollutants and their 

associated individual standards, i.e., 

NMHC, NAX, and CO. The MOA and 

subsequent gaseous emissions test 

program also focused on identifying the 

final accuracy margins for these 

individual pollutants. In developing the 

original rule and subsequent test 

program, however, we failed to 

recognize that 2004 through 2006 model 

year engine families are actually 

certified to a combined NOX plus 

NMHC standard under § 86.004–11(a)(l) 

of the applicable regulations. 

Furthermore, under the ‘‘phase-in 

options’’ of § 86.007–11(g)(l) an engine 

manufacturer may optionally certify 

some of its production in model years 

2007 through 2009 to the combined 

NOX plus NMHC standard for 2006 

model year engines under § 86.2004–11, 

rather than the otherwise applicable 

individual NOX and NMHC standards. 

Therefore, we are correcting this 

oversight by proposing in-use testing 

accuracy margins for the combined NOX

plus NMHC standard. 

The methodology for determining an 

accuracy margin for the combined NOX

plus NMHC emission standard is the 

same as that used to determine the 

numerical value of the combined 

standard itself. Specifically, the 

individual NOX and NMHC accuracy 

margins are simply added together to 

provide a single value. Therefore, for 

2004–2007 model year engines that may 

be tested under the gaseous emission 

pilot program for the 2006 and 2007 

calendar years, we propose that the 

combined accuracy margin is the sum of 

the individual NOX and NMHC values 

already contained in § 86.1912, or 0.67 

g/bhp-hr. For engines tested in the 

enforceable program that begins in the 

2007 calendar year and applies to 2007 

and later model year diesel engines, the 

combined NOX plus NMHC accuracy 

margins, using the individual values 

from Table 1, are shown in Table 2. 

TABLE 2.—FINAL COMBINED NOX PLUS NMHC MEASUREMENT ACCURACY MARGINS FOR THE ENFORCEABLE GASEOUS

EMISSIONS IN-USE TESTING PROGRAM

Pollutant 

Accuracy margins 

2007–2009 

model year engines 

(g/bhp-hr) 

Method 1 only Methods 2 and 3 

NOX + NMHC .............................................................................................................................................. 0.47 0.16 

C. Delaying the Enforceable PM 

Program From 2008 to 2009 

The MOA described in section IV.A. 

acknowledged that in order to 

promulgate new measurement accuracy 

margins with adequate lead time to 

begin the 2008 enforceable PM I 

program, certain key milestone dates in 

the test program had to be achieved. 

Contingencies for missing the final 

delivery date were specified in the MOA 

and in the June 2005 final rulemaking.4

Most relevant to today’s proposal was 

that if the final values and 

documentation were delayed more than 

three months from November 1, 2007 

then the PM pilot program would 

continue for calendar year 2008 in place 

of the fully enforceable program for that 

year. 

Completing the PM test program on 

schedule required that the initial work 

be conducted in parallel with the 

ongoing gaseous emission test program 

Using the same contractors and 

personnel from EPA, CARB, and the 

engine manufacturers. Due to 

unexpected issues in the gaseous 

emission test program and the lack of 

other resources, all work on the PM test 

plan and subsequent test program had to 

be postponed until recently. The end 

result of this postponement is that the 

final accuracy margin for PM will be 

delayed by approximately one year. 

Accordingly, the MOA and in-use test 

program regulations require that the first 

year of the previously adopted 

enforceable program (calendar year 

2008) be placed into abeyance and the 

PM pilot program continued for that 

year. Hence, we are proposing to modify 

the in-use testing regulations so that the 

PM pilot program extends into 2008 and 

the fully enforceable PM program begins 

in 2009. 

D. Suspending the 2006 PM Pilot 

Program 

The in-use testing program, as 

originally adopted in June 2005, 

included a two-year pilot (i.e., 

demonstration) program for PM 

emissions in calendar years 2006 and 

2007. In establishing this requirement, 


rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 73, No. 50 / Thursday, March 13, 2008 / Proposed Rules 13521 

EPA noted that the onboard 

measurement of PM emissions was 

significantly more challenging than for 

gaseous emissions, and that further 

development of the requisite portable 

measurement systems would be needed. 

We also noted our expectation that 

engine manufacturers would use ‘‘best 

available’’ prototype systems that were 

capable of measuring PM emissions as 

required. Nonetheless, in recognition of 

the then remaining technical 

uncertainties, we added a provision to 

the regulations that would suspend the 

in-use test program as it applied to PM 

measurement if we discovered 

fundamental technical problems with 

portable in-use PM measurement 

systems that could not be resolvable in 

a reasonable time. 

In a letter dated January 4, 2007, EMA 

requested that the first year of the twoyear PM pilot program be held in 

abeyance. The principle reasons cited 

were associated with certain technical 

concerns primarily relating to the 

availability and efficacy of the requisite 

portable measurement systems for that 

pollutant. In a subsequent letter dated 

April 11, 2007, EMA more specifically 

detailed its concerns with currently 

available portable PM measurement 

systems. The trade group also argued 

that it would be better to take the time 

now to develop better portable PM 

measurement devices in order to ensure 

a successful launch of the fully 

enforceable program in 2009. Finally, 

EMA noted that even with the 

suspension of the 2006 PM pilot 

program, there would still be a full two 

years of the PM pilot as originally called 

for in the regulations. 

After carefully considering EMA’s 

concerns, we agree that it is better to 

eliminate the 2006 calendar year PM 

pilot program in order to focus our 

collective efforts on improving the 

current portable PM measurement 

systems and conducting the cooperative 

research and deve1opment program for 

this pollutant. Therefore, we are 

proposing such a delay. 

E. Revised Schedules and Testing 

Flexibilities the for the 2005 Through 

2009 In-Use Test Programs 

The June 2005 final rule that 

established the heavy-duty in-use test 

program stated that EPA would 

typically select engine families for 

testing in June of each calendar year. 

Further, the regulations allowed 18 

months from the time engine families 

were designated for engine 

manufacturers to complete all testing 

and report the results to EPA. 

Subsequent to the final rule, we 

concluded that certain adjustments to 

the test schedules were necessary in the 

early years of the program to address: (1) 

Delays in initiating certain aspects of 

the program, (2) manufacturers’

concerns regarding the schedule for 

initial purchases of PM measurement 

systems, and (3) manufacturers’

concerns instrumenting test vehicles for 

PM emission testing in the early years 

of the program. Our proposed 

adjustments for engine family 

designation and reporting dates are 

summarized in Table 3, which also 

reflect the other proposed programmatic 

revisions discussed previously. 

TABLE 3.—REVISED ENGINE FAMILY DESIGNATION AND REPORTING SCHEDULES

Program 

Designate families Report due 

Original Revised Original Revised 

2005 Gaseous Pilot ............................................................................................ 06/2005 Unchanged .. 11/2006 11/2007. 

2006 Gaseous Pilot ............................................................................................ 06/2006 12/2006 ....... 11/2007 11/2008. 

2007 Gaseous Enforceable ................................................................................ 06/2007 12/2007 ....... 11/2008 11/2009. 

2007 PM Pilot ..................................................................................................... 06/2007 12/2007 ....... 11/2008 05/2010. 

2008 Gaseous Enforceable ................................................................................ 06/2008 09/2008 ....... 11/2009 03/2010. 

2008 PM Pilot ..................................................................................................... 06/2008 09/2008 ....... 11/2009 09/2010. 

2009 Gaseous Enforceable ................................................................................ 06/2009 Unchanged .. 11/2010 04/2011. 

2009 PM Enforceable ......................................................................................... 06/2009 Unchanged .. 11/2010 04/2011. 

2010 Gaseous Enforceable ................................................................................ 06/2010 Unchanged .. 11/2011 Unchanged. 

2010 PM Enforceable ......................................................................................... 06/2010 Unchanged .. 11/2011 Unchanged. 

* For illustration only. The 2010 program dates are as originally promulgated. 

EF. Removing the Gaseous Accuracy 

Test Program from the Regulations 

We are proposing to delete the 

references in § 86.1935 that pertain to 

the final report for gaseous emission 

accuracy margins and the consequences 

that would ensue if the report was 

delayed beyond certain dates. These 

provisions are no longer needed because 

final accuracy margins for gaseous 

pollutants are being proposed in this 

rulemaking. The proposed revised 

section, therefore, would appropriately 

focus on the ongoing development of 

accuracy margins for PM emissions. 

For additional discussion of the 

proposed rule changes, see the direct 

final rule EPA has published in the 

‘‘Rules and Regulations’’ section of 

today’s Federal Register. This proposal 

incorporates by reference all the 

reasoning, explanation, and regulatory 

text from the direct final rule. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This proposed rule is not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993) and is 

therefore not subject to review under the 

EO. This proposed rule merely replaces 

the interim gaseous emission 

measurement accuracy allowances for 

portable emission measurement systems 

with final values and delays the in-use 

testing implementation dates for the 

fully enforceable PM test program as 

either envisioned or allowed for in the 

original final rule. This proposal also 

grants a request from the affected engine 

manufacturers for a one year delay in 

the start of the pilot testing program for 

PM. Further, here are no costs 

associated with this rule beyond those 

envisioned in the original rule. 

B. Paperwork Reduction Act 

This proposed rule does not include 

any new collection requirements, as it 

acts to replace interim gaseous emission 

measurement accuracy allowances for 

portable emission measurement systems 

with final values and delays the 

implementation schedule for the in-use 

PM testing program. There are no new 

paperwork requirements associated with 

this rule. 


rwilkins on PROD1PC63 with PROPOSALS
13522 Federal Register / Vol. 73, No. 50 / Thursday, March 13, 2008 / Proposed Rules 

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 in 40 

CFR are listed in 40 CFR Part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that, the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this proposed rule on small entities, 

a small entity is defined as: (1) A small 

business that meet the definition for 

business based on SBA size standards at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. In determining whether a rule 

has a significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 USC 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect on all of the small 

entities subject to the rule. 

This proposed rule acts to replace 

interim gaseous emission measurement 

accuracy allowances for portable 

emission measurement systems with 

final values and delays the 

implementation schedule for the in-use 

PM testing program. We have, therefore, 

concluded that today’s proposal will 

relieve regulatory burden for all small 

entities and will not have a significant 

economic impact on a substantial 

number of small entities. 

D. Unfunded Mandates Reform Act 

This proposed rule contains no 

federal mandates for state, local, or 

tribal governments as defined by the 

provisions of Title II of the UMRA. The 

proposed rule imposes no enforceable 

duties on any of these governmental 

entities. Nothing in the proposed rule 

would significantly or uniquely affect 

small governments. EPA has determined 

that this proposed rule contains no 

federal mandates that may result in 

expenditures of more than $100 million 

to the private sector in any single year. 

This proposed rule acts to replace 

interim gaseous emission measurement 

accuracy allowances for portable 

emission measurement systems with 

final values and delays the 

implementation schedule for the in-use 

PM testing program. See the direct final 

rule EPA has published in the ‘‘Rules 

and Regulations’’ section of today 

Federal Register for a more extensive 

discussion of UMRA policy, 

E. Executive Order 13132: Federalism 

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

rule merely replaces interim 

measurement accuracy allowances for 

portable emission measurement systems 

with final values as envisioned in the 

original rule. See the direct final rule EP 

A has published in the ‘‘Rules and 

Regulations’’ section of today’s Federal 

Register for a more extensive discussion 

of Executive Order 13132. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This proposed rule does not have 

tribal implications. It 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. 

This proposed rule does not uniquely 

affect the communities of Indian Tribal 

Governments, Further, no circumstances 

specific to such communities exist that 

would cause an impact on these 

communities beyond those discussed in 

the other sections of this rule. This 

proposed rule merely replaces interim 

gaseous emission measurement 

accuracy allowances for portable 

emission measurement systems with 

final values and delays the 

implementation schedule for the in-use 

PM testing program. Thus, Executive 

Order 13175 does not apply to this rule. 

See the direct final rule EPA has 

published in the ‘‘Rules and 

Regulations’’ section of today’s Federal 

Register for a more extensive discussion 

of Executive Order 13132. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This proposed rule is not subject to 

the Executive Order because it is not 

economically significant, and does not 

involve decisions on environmental 

health or safety risks that may 

disproportionately affect children. See 

the direct final rule EPA has published 

in the ‘‘Rules and Regulations’’ section 

of today’s Federal Register for a more 

extensive discussion of Executive Order 

13045. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution or use of energy. 

This proposed rule merely replaces 

interim gaseous emission measurement 

accuracy allowances for portable 

emission measurement systems with 

final values and delays the 

implementation schedule for the in-use 

PM testing program. 


rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 73, No. 50 / Thursday, March 13, 2008 / Proposed Rules 13523 

I. National Technology Transfer and 

Advancement Act 

This proposed rule does not involve 

technical standards. This proposed rule 

merely replaces interim gaseous 

emission measurement accuracy 

allowances for portable emission 

measurement systems with final values 

and delays the implementation schedule 

for the in-use PM testing program. Thus, 

we have determined that the 

requirements of the NTTAA do not 

apply. See the direct final rule EPA has 

published in the ‘‘Rules and 

Regulations’’ section of today’s Federal 

Register for a more extensive discussion 

of NTTAA policy. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA has determined that this 

proposed rule will not have 

disproportionately high and Adverse 

human health or environmental effects 

on minority or low income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. See the direct final 

rule EPA has published in the ‘‘Rules 

and Regulations’’ section of today’s 

Federal Register for a more extensive 

discussion of Executive Order 13045. 

K. Statutory Authority, 

The statutory authority for this action 

comes from 42 U.S.C. 7401–7671q. C. 

7607(d). 

List of Subjects in 40 CFR Part 86 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Labeling, Motor vehicle pollution, 

Reporting and recordkeeping 

requirements. 

Dated: February 28, 2008. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. 08–1017 Filed 3–12–08; 8:45 am] 

BILLING CODE 6560–50–M 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

49 CFR Chapter X 

[STB Ex Parte No. 676] 

Rail Transportation Contracts Under 49 

U.S.C. 10709 

AGENCY: Surface Transportation Board, 

DOT. 

ACTION: Advance Notice of Proposed 

Rulemaking. 

SUMMARY: The Surface Transportation 

Board seeks public comments on a 

proposal to require railroads to include 

a disclosure statement in any document 

that they consider to be a rail 

transportation contract under 49 U.S.C. 

10709. 

DATES: Comments are due by May 12, 

2008. 

ADDRESSES: Comments may be 

submitted either via the Board’s e-filing 

format or in the traditional paper 

format. Any person using e-filing should 

attach a document and comply with the 

instructions at the E-FILING link on the 

Board’s Web site, at: http:// 

www.stb.dot.gov. Any person submitting 

a filing in the traditional paper format 

should send an original and 10 copies 

to: Surface Transportation Board, Attn: 

STB Ex Parte No. 676, 395 E Street, SW., 

Washington, DC 20423–0001. 

Copies of written comments will be 

available from the Board’s contractor, 

ASAP Document Solutions (Mailing 

Address: Suite 103, 9332 Annapolis Rd., 

Lanham, MD 20706; e-mail address: 

asapdc@verizon.net; telephone number: 

202–306–4004). The comments will also 

be available for viewing and selfcopying in the Board’s Public Docket 

Room, Room 131, and will be posted to 

the Board’s Web site at: http:// 

www.stb.dot.gov. 

FOR FURTHER INFORMATION CONTACT: 

Timothy J. Strafford at 202–245–0356. 

[Assistance for the hearing impaired is 

available through the Federal 

Information Relay Service (FIRS) at 1–

800–877–8339.] 

SUPPLEMENTARY INFORMATION: In recent 

proceedings, the Board has noted that 

there is often no clear distinction 

between regulated common carrier rates 

and unregulated rail transportation 

contracts. See, e.g., Kansas City Power & 

Light Company v. Union Pacific 

Railroad Company, STB Docket No. 

42095 (STB served July 27, 2006); 

Interpretation of the Term ‘‘Contract’’ in 

49 U.S.C. 10709, STB Ex Parte No. 669 

(STB served Mar. 29, 2007). The Board 

has instituted this rulemaking 

proceeding to consider imposing a 

requirement that each rail carrier 

provide a full disclosure statement 

when it seeks to enter into a rail 

transportation contract under 49 U.S.C. 

10709. The statement would explicitly 

advise the shipper that the carrier 

intends the document to be a rail 

transportation contract, and that any 

transportation under the document 

would not be subject to regulation by 

the Board. Moreover, it would advise 

the shipper that it has a statutory right 

to request a common carriage rate that 

the carrier would then have to supply 

promptly, and such a rate might be open 

to challenge before the Board. The 

proposal would also require that, before 

entering into a rail transportation 

contract, the carrier provide the shipper 

an opportunity to sign a written 

informed consent statement in which 

the shipper acknowledges, and states its 

willingness to forgo, its regulatory 

options. Interested persons are invited 

to comment on the proposal and the 

Board welcomes suggestions as to what 

language should be included in this full 

disclosure/informed consent 

requirement. 

This action will not significantly 

affect either the quality of the human 

environment or the conservation of 

energy resources. 

Authority: 49 U.S.C. 721, 49 U.S.C. 10709. 

Decided: March 6, 2008. 

By the Board, Chairman Nottingham, Vice 

Chairman Mulvey, and Commissioner 

Buttrey. 

Anne K. Quinlan, 

Acting Secretary. 

[FR Doc. E8–5058 Filed 3–12–08; 8:45 am] 

BILLING CODE 4915–01–P 


rwilkins on PROD1PC63 with PROPOSALS