        LIBRARY OF CONGRESS
        Copyright Office
        37 CFR Part 201
        [Docket No. RM 2006-1]
        Fees

          AGENCY:
          Copyright Office, Library of Congress.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          This notice of proposed rulemaking is issued to inform the public that the Copyright Office of the Library of Congress is considering adoption of new fees for special services and Licensing Division services, and that the Office has submitted to Congress proposed new statutory fees for certain other services. The proposed fees would recover a significant part of the costs to the Office of registering claims and provide full cost recovery for many services provided by the Office which benefit only or primarily the user of that service.

          DATES:
          Comments should be in writing and received on or before April 27, 2006.

          ADDRESSES:
          If hand delivered by a private party, an original and ten copies of any comment should be brought to Room LM-401 of the James Madison Memorial Building between 8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000. If hand delivered by a commercial courier, an original and ten copies of any comment must be delivered to the Congressional Courier Acceptance Site located at Second and D Streets, NE., Washington, DC, between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Copyright Office General Counsel, Room LM-403, James Madison Memorial Building, 101 Independence Avenue, SE., Washington DC. If sent by mail, an original and five copies of any comment should be addressed to: Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024-0400. Comments may not be delivered by means of overnight delivery services such as Federal Express, United Parcel Service, etc., due to delays in processing receipt of such deliveries.

          FOR FURTHER INFORMATION CONTACT:
          Tanya M. Sandros, Associate General Counsel, or Kent Dunlap, Principal Legal Advisor for the General Counsel, Telephone: (202) 707-8380. Telefax: (202) 707-8366.

        SUPPLEMENTARY INFORMATION:
        Section 708 of the copyright law establishes two separate procedures for adjusting fees for Copyright Office services to account for increases in costs. Fees for services specifically enumerated in section 708(a)(1)-(9) (“statutory fees”) are adjusted according to the procedures set forth in section 708(b). This procedure includes the completion of a cost study, and the forwarding of an economic report and proposed fee schedule to Congress, which takes effect unless Congress enacts a law within 120 days disapproving of the new fees. The second procedure concerns fees for services not specifically enumerated in section 708(a)(1)-(9), and for the purposes of this rulemaking, these fees are termed “discretionary fees.” Section 708(a) authorizes the Register to set these fees at “the cost of providing the service.” As with the statutory fees, the Copyright Office adjusts the discretionary fees only after conducting a cost study to determine the cost of providing the services.
        This is the third schedule of fees to be proposed under the current fee setting procedure which was adopted when section 708 was amended in 1997 with the passage of the Technical Amendments Act, Public Law 105-80, 111 Stat. 1529. The first schedule was adopted in 1999, see 63 FR 43426 (August 13, 1998) and 64 FR 29518 (June 1, 1999), and the second schedule was adopted three years later in 2002. To cover the rising costs of providing copyright services, most fees were increased in 2002. However, notable among fees that were not adjusted at that time was the basic registration filing fee, which was kept at the 1999 level. The Register provided a number of reasons for her determination that no increase in basic registration fees was warranted at the time. They included the substantial increase of 1999 which accounted for an acceptable level of cost recovery, the costs associated with increasing the fee, and the changes in processing anticipated from the Copyright Office's impending business process reengineering effort. 67 FR 38003 (May 31, 2002).
        Because costs have continued to rise since the last fee adjustment in 2002, the Office undertook a third cost study to assess how well current fees allowed the Copyright Office to recover its costs of providing its services to the public. The result of that study is today's proposal to increase most fees to a level that allows the Office to recover a significant portion of its costs as contemplated by Congress.
        I. Overview
        The expenses of the Copyright Office have always been substantially funded through the charging of fees for the services provided, although programs relating to domestic and international copyright policy and public information have been generally paid for by appropriated funds. Yet, for the last fifty years, fees have not provided for full cost recovery. During this period, cost recovery through the charging of fees has ranged from 50% to 80% of the expenses of the Copyright Office. In fiscal year 2005, the Copyright Office collected $23,788,227 in fees, sufficient to offset only 56.7% of the total expenditures of the Office, whereas in 2002, fees covered just over 66% of the Office's costs for providing its services.

        In order to place the Copyright Office on a sounder financial footing, a cost study was undertaken last year by the Office which evaluated all the fees charged by the Copyright Office. Based upon its findings, the Office determined that most fees for services mandated by statute should be adjusted to reflect increased costs of providing the various services. These proposed new fees falling within the rate adjustment procedure of section 708(b) were submitted to Congress on March 1, 2006. Congress now has 120 days to consider these fees. During that time, the Office is also providing the public with an opportunity to comment on the statutory fees which the Office intends to adjust to recover the increased costs of providing the specified services.
        Section 708(a) also provides the Register of Copyrights with authority to fix fees for other services based on the cost of providing that service. Like the statutory fees, the Office is proposing to adjust these discretionary fees to reflect increases in the cost of providing those services and, in those instances where the service benefits primarily the user of that service, the fee has been set to recover the full cost to the Office of providing that service. However, before adopting these proposed new fees, the Office is providing the public with an opportunity to comment. The Copyright Office plans to implement the new discretionary fees on the same day the statutory fees are scheduled to become effective, July 1, 2006.
        II. Discretionary Fees
        In general, the proposed discretionary fees have been adjusted to reflect the current cost of providing the service. Before making this decision, the Office conducted a study of the costs of the services provided and took into account the criterion that the Register may set fees at a level no more than necessary to recover the reasonable costs incurred by the Copyright Office. Because costs have increased, and the Register is keenly aware of Congress's basic criterion of cost recovery, most fees will be increased. Some will be increased at full cost recovery where the service benefits only or primarily the requester, e.g, secure test processing, expedited handling of claims, and expedited searches. Fees for first and second level reconsideration of refusal to register a claim are also being increased, but not at the level of full cost recovery, since it may be helpful to courts to have the claims reexamined at a higher level, and the purpose of providing such review is to ensure that the Office's decisions on registration comply with the applicable legal standards.
        While this notice will not discuss each fee increase individually because fees have been adjusted either to recover the cost of the service or to account for the rate of inflation since the last fee adjustment, the Copyright Office believes further clarification is useful for the following fees.
        1. Registration of GATT Group. The Copyright Office has decided to eliminate the option of registering up to ten related, restored works published within the same calendar year as a GATT/Group. This service is seldom used and it is costly to the Office. Consequently, GATT/Group has been listed as discontinued. However, works that would have been filed under this provision can still be registered, although each work must be registered individually. Technical amendments will be made in the final rule to 37 CFR 202.12(c) to reflect this change.
        2. Recordation of Notices of Intent to Enforce (NIE's). With the enactment of section 104A of the copyright law in 1993, the Copyright Office was given the responsibility of recording documents known as Notices of Intent to Enforce copyrights restored under the Uruguay Round Agreements Act. Because the term of eligibility for filing NIE's has concluded for most countries, this is now a seldom used service. The Copyright Office has decided to apply the same fees to NIE's as are applicable to other recorded documents.
        3. Search estimate by the Reference & Bibliography Section. Currently, the Reference & Bibliography Section provides a free written estimate of the number of hours which will likely be needed to complete a search and report and an estimate of the fee to conduct this search. But in order to arrive at the estimate, the Reference and Bibliography Section actually performs a major part of the search; and if the client requesting the estimate decides not to order the search, the Office receives no fee to cover its cost of providing the estimate. Consequently, the Office will no longer provide free estimates under the new fee schedule. Instead, as with other services that are primarily for the benefit of the user, the Copyright Office is setting the fee at a level to recover its cost for the service provided. The fee to prepare a written estimate will now be $100. If the client requests that the search and report be undertaken, the $100 fee will be applied to the total fee charged.
        4. Handling fee for extra deposit copy for certification. For claimants who wish to obtain certified copies of their deposits after issuance of the certificate of registration, the Copyright Office will accept an extra deposit copy to be certified upon registration of the claim. The current fee for this service is the same as the fee for the basic registration and it has been adjusted under the new schedule to the same level as the basic registration fee.
        5. Expedited Reference & Bibliography Search and Report. The Copyright Office is adopting an hourly fee for providing a written search report based on an expedited search of the Copyright Office records. This fee replaces the current hourly fee and surcharge now used to cover the costs of these services. The new single fee covers both the search and the written report and has been calculated to maintain full cost recovery.
        6. Copying fees. Current fees do not recover the costs of providing copies of Copyright Office records or copies of deposits, often exceeding by approximately 50% the amount of fees received by the Office for these services. To eliminate this shortfall, the new fees for various forms of reproductions have been increased by up to 50% and, in the case of photocopying documents, a minimum fee of $6.00 has been added to cover the administrative costs of handling these requests. Moreover, the Office has decided to harmonize the fees for photocopying throughout the Office.
        III. Statutory Fees

        The Office is basing its conclusion that most statutory fees should be increased upon its findings from the cost study and after considering a number of policy and economic factors such as fairness and equity and consideration of the objectives of the copyright system, projected inflation, and the effect of these increases on the public's decision to utilize these services. In light of these considerations, a number of statutory fees have been adjusted to achieve or maintain full cost recovery, e.g., the fees for filing a supplemental registration, filing a registration for renewal or for a group of related works, issuing a receipt for a deposit under 17 U.S.C. 407, recording documents of various types, and providing additional certificates, whereas other statutory fees have been adjusted only to account for inflation since the last fee adjustment in 2002.

        Moreover, the Office has concluded that the basic registration filing fee, which was not adjusted in 2002, should be increased by 50% this year from $30 to $45. However, this increase does not reflect full cost recovery for the service provided nor does the Office seek to recover its full cost for registration of a single claim. The registration system provides benefits to the public and to the Library of Congress that offset the need to set fees at a level that would recover full costs. Although the copyright law provides incentives to register copyrights, see 17 U.S.C. 410(c), 411(a), and 412, the Office nevertheless recognizes that copyright owners balance the benefits of these incentives against the costs of registration, and that there is a fair degree of price elasticity with respect to registration. Therefore, the Office has set the fee for the basic registration at a level to allow reasonable recovery of costs but not so high as to discourage copyright owners from filing their claims with the Office.

        The “Analysis and Proposed Copyright Fee Schedule to Go into Effect July 1, 2006,” which was submitted to Congress on March 1, 2006, is posted on the Office's Web site at: http://www.copyright.gov/reports/studies/proposedfees2006.pdf.

        IV. Proposed New Statutory and Filing Fees
        Based upon the cost study prepared by the Copyright Office, the Copyright Office is proposing a new fee schedule for registration and related services, special services, and Licensing Division services.
        A comparison of existing and new fees is included in the following charts:

            Current fees
            Fee to become effective July 1, 2006

              Registration, Recordation and Rated Services

            (1) Registration of a basic claim in an original work of authorship:

            Forms TX, SE, PA, VA (including Short Forms), and Form SR
            $30
            $45

            (2) Registration of a claim in a group of contribution to periodicals (GR/CP)
            30
            45

            (3) Registration of a renewal claim (Form RE):

            Claim without Addendum
            60
            75

            Addendum
            30
            220

            (4) Registration of a claim in a mask work (Form MW)
            75
            95

            (5) Registration of a claim in a group of serials (Form SE/Group) [per issue, with minimum 2 issues] 1

            15
            25

            (6) Registration of a claim in a group of daily newspapers and qualified newsletters (Form G/DN)
            55
            70

            (7) Registration of a claim in a restored copyright (Form GATT)
            30
            45

            (8) Registration of a claim in a group of restored works (Form GATT Group [per issue, with $45 minimum] 2

            15
            discontinued.

            (8) Registration of a group of published photographs 3

            NA
            75

            (9) Preregistration of certain unpublished works 3

            100
            150

            (10) Registration of a correction or amplification to a claim (Form CA)
            100
            115

            (11) Providing an additional certificate of registration
            30
            40

            (12) Certification of other Copyright Office records (per hour)
            80
            150

            (13) Search-report prepared from official records (per hour)
            75
            150

            Estimate of search fee 4

            NA
            100

            (14) Location of Copyright Office records (per hour)
            80
            150

            Location of in-process materials (per hour)
            100
            150

            (15) Recordation of document, including a Notice of Intention to Enforce (NIE) (single title)
            80
            95

            Additional titles (per group of 10 titles)
            20
            25

            (15) Recordation of a Notice of Intention to Enforce (NIE) a restored copyright containing no more than one title 5

            30
            discontinued, see item 14.

            Additional NIE titles (each)
            1
            discontinued, see item 14.

            (16) Recordation of Notice of Intention to Make and Distribute Phonorecords
            12
            12

            (17) Recordation of an Interim Designation of Agent to Receive Notification of Claimed Infringement under § 512(c)(2) 3

            30
            80

            (18) Issuance of a receipt for a § 407 deposit
            10
            20

            (19) Registration of a claim in a vessel hull 3

            140
            200

              Special Services

            (1) Service charge for deposit account overdraft
            100
            150

            (2) Service charge for dishonored deposit account replenishment check
            35
            75

            (3) Appeals:

            (i) First appeal
            200
            250

            Additional claim in related group
            20
            25

            (ii) Second appeal
            500
            500

            Additional claim in related group
            20
            25

            (4) Secure test processing charge, per hour
            60
            150

            (5) Copying of Copyright Office Records by staff,3

            Photocopy (b&w) (per page, minimum $6)
            0.50
            0.50

            Photocopy (color) (per page, minimum $6)
            1
            1.50

            Photograph (Polaroid)
            10
            15

            Photograph (digital)
            30
            45

            Slide
            2
            3

            Audiocassette (first 30 minutes)
            50
            75

            Additional 15 minute increments
            20
            20

            Videocassette (first 30 minutes)
            50
            75

            Additional 15 minute increments
            25
            25

            CD or DVD
            40
            50

            Zip or floppy disk
            75
            100

            (6) Special handling fee for a claim
            580
            685

            Each additional claim using the same deposit
            50
            50

            (7) Special handling fee for recordation of a document
            330
            435

            (8) Handling fee of extra deposit copy for certification 6

            30
            45

            (9) Full-term retention of a published deposit
            425
            425

            (10) Expedited Reference and Bibliography search and report 7

            NA
            400/hr.

            (surcharge, per hour)
            250
            discontinued.

            (11) Expedited Certification & Documents services (surcharge, per hour)
            200
            240

            (12) Notice to Libraries and Archives 3

            50
            50

            Each additional title
            20
            20

            (13) Use of COINS terminal in LM-B14 (per hour) 3

            20
            25

            (14) Fed Ex Service 3

            15
            35

            (15) Delivery of documents via facsimile (per page, 7 page maximum) 3

            1
            1

              Licensing Division Services

            (1) Recordation of a Notice of Intention to Make and Distribute Phonorecords (17 U.S.C. 115)
            12
            12

            (2) Certificate of Filing a Notice of Intention (17 U.S.C. 115)
            8
            discontinued.9

            (3) Filing Fee for Recordation of License Agreements under 17 U.S.C. 118
            50
            125

            (4) Recordation of Certain Contracts by Cable Television Systems Located Outside the Forty-Eight Contiguous States
            50
            50

            (5) Initial Notice of Digital Transmission of Sound Recording (17 U.S.C. 114)
            20
            20

            Amendment of 17 U.S.C. 114 Notice
            20
            20

            (6) Statement of Account Amendment (Cable Television Systems and Satellite Carriers, 17 U.S.C. 111 and 119)
            15
            95

            (7) Statement of Account Amendment (Digital Audio Recording Devices or Media, 17 U.S.C. 1003) 8

            20
            95

            (8) Photocopy made by staff (b&w) (per page, minimum $6)
            0.40
            0.50

            (9) Search, per hour
            65
            150

            (10) Certification of Search Report
            65
            150

            1 Amended to replace $45 minimum with a 2 issues minimum.

            2 To be removed; see section II 1.

            3 New items: fees not currently listed in 37 CFR 201.3(d).

            4 New fee, see section II 3.

            5 See section II 2.

            6 New item: fee not currently listed in 37 CFR 201.3(d), see section II 4.

            7 New fee, see section II 5.

            8 To be combined with item 6 in the final regulation.

            9 Discontinued service, see 69 FR 34582 (June 2, 2004).

        V. Technical Amendments
        The Office will adopt technical amendments as needed to conform existing regulations with the changes proposed in this notice.
        VI. Request for Comments
        The Copyright Office is publishing the proposed new fees in order to provide the public with an opportunity to comment by April 27, 2006. The new fees will take effect on July 1, 2006, unless the Copyright Office has received adverse substantive comments, and publishes a notice withdrawing the new fees before that date.

          Dated: March 21, 2006.
          Tanya M. Sandros,
          Associate General Counsel.

      [FR Doc. E6-4385 Filed 3-27-06; 8:45 am]
      BILLING CODE 1410-30-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 594
        [Docket No. NHTSA 2006-24128; Notice 2]
        RIN 2127-AJ87
        Schedule of Fees Authorized by 49 U.S.C. 30141

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), DOT.

          ACTION:
          Notice of proposed rulemaking; Correction.

          SUMMARY:

          This document corrects the docket number identified in a notice of proposed rulemaking published in the Federal Register on April 19, 2006, proposing fees for Fiscal Year 2007 and until further notice relating to the registration of importers and the importation of motor vehicles that are not certified as conforming to the Federal motor vehicle safety standards (FMVSS).

          FOR FURTHER INFORMATION CONTACT:
          Coleman Sachs, Office of Vehicle Safety Compliance, NHTSA (202-366-5291).
          Correction
          NHTSA is correcting the docket number for the notice of proposed rulemaking, published on April 19, 2006 (at 71 FR 20061), proposing fees, as authorized by 49 U.S.C. 30141, relating to the registration of importers and the importation of motor vehicles that are not certified as conforming to the FMVSS. The docket number was incorrectly identified as “NHTSA 2006-2412”. The correct docket number is “NHTSA 2006-24128”. The correct docket number should be identified on any comments submitted in response to the notice of proposed rulemaking.

            Ronald L. Medford,
            Senior Associate Administrator for Vehicle Safety.

       [FR Doc. E6-6936 Filed 5-8-06; 8:45 am]
      BILLING CODE 4910-59-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [FRL-7034-8]
        National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Notice of intent to delete the V&M/Albaladejo Superfund Site from the National Priorities List.

          SUMMARY:

          The Environmental Protection Agency (EPA) Region II is issuing a notice of intent to delete the V&M/Albaladejo Superfund Site (Site), located in the Almirante Norte Ward of the municipality of Vega Baja, Puerto Rico, from the National Priorities List (NPL) and requests public comment on this action. The NPL is Appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, which EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended. The EPA and the Commonwealth of Puerto Rico, through the Puerto Rico Environmental Quality Board, have determined that all appropriate response actions under CERCLA have been completed and that the Site poses no significant threat to public health or the environment. In the “Rules and Regulations” Section of today's Federal Register, we are publishing a direct final notice of deletion of the V&M/Albaladejo Superfund Site without prior notice of this action because we view this as a noncontroversial revision and anticipate no significant adverse comment. We have explained our reasons for this deletion in the preamble to the direct final deletion. If we receive no significant adverse comment(s) on this action, we will not take further action on this notice of intent to delete. If we receive significant adverse comment(s), we will withdraw the direct final notice of deletion and it will not take effect. We will, as appropriate, address all public comments. If, after evaluating public comments, EPA decides to proceed with deletion, we will do so in a subsequent final deletion notice based on this notice of intent to delete. We will not institute a second comment period on this notice of intent to delete. Any parties interested in commenting must do so at this time. For additional information, see the direct final notice of deletion which is located in the Rules section of this Federal Register.

          DATES:
          Comments concerning this Site must be received by September 20, 2001.

          ADDRESSES:
          Written comments should be addressed to: Caroline Kwan, Remedial Project Manager, Emergency and Remedial Response Division, U.S. Environmental Protection Agency, Region II, 290 Broadway, 20th Floor, New York, New York 10007-1866.

          FOR FURTHER INFORMATION CONTACT:
          Ms. Caroline Kwan at the address provided above, or by telephone at (212) 637-4275, by Fax at (212) 637-4284 or via e-mail at Kwan.Caroline@EPA.GOV.

        SUPPLEMENTARY INFORMATION:

        For additional information, see the Direct Final Notice of Deletion which is located in the Rules section of this Federal Register.

          Authority:
          33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9675; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp.; p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp.; p. 193.

          Dated: August 2, 2001.
          William J. Muszynski,
          Acting EPA Regional Administrator, U.S. EPA, Region II.

      [FR Doc. 01-20891 Filed 8-20-01; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU77

        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Ceanothus ophiochilus (Vail Lake ceanothus) and Fremontodendron mexicanum (Mexican flannelbush)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period, notice of availability of draft economic analysis, and amended Required Determinations.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the proposed designation of critical habitat for two southern California plants: Ceanothus ophiochilus (Vail Lake ceanothus) and Fremontodendron mexicanum (Mexican flannelbush). We also announce the availability of the draft economic analysis for the proposed critical habitat designations and an amended Required Determinations section of the proposal. The draft economic analysis identifies potential costs will be $385,000 to $659,000 in undiscounted dollars over a 20-year period as a result of the proposed designation of critical habitat, including those costs coextensive with listing and recovery. Discounted future costs are estimated to be $325,000 to $559,000 ($22,000 to $38,000 annualized) at a 3 percent discount rate, or $272,000 to $471,000 ($26,000 to $44,000 annualized) at a 7 percent discount rate. The amended Required Determinations section provides our determination concerning compliance with applicable statutes and Executive Orders that we have deferred until the information from the draft economic analysis of this proposal was available. We are reopening the comment period to allow all interested parties to comment simultaneously on the proposed rule, the associated draft economic analysis, and the amended Required Determinations section.

          DATES:
          We will accept public comments until May 7, 2007.

          ADDRESSES:
          Written comments and materials may be submitted to us by any one of the following methods:
          (1) E-mail: Please submit electronic comments to fw8cfwocomments@fws.gov. Include “RIN 1018-AU77” in the subject line. Please see the Public Comments Solicited section under SUPPLEMENTARY INFORMATION.
          (2) Facsimile: You may fax your comments to 760/431-5901.
          (3) U.S. mail or hand-delivery: You may submit written comments and information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
          (4) Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

          FOR FURTHER INFORMATION CONTACT:

          Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, at the address listed in the ADDRESSES section (telephone: 760/431-9440). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited

        We will accept written comments and information during this reopened comment period. We solicit comments on the original proposed critical habitat designation for Ceanothus ophiochilus and Fremontodendron mexicanum published in the Federal Register on October 3, 2006 (71 FR 58340), and on our draft economic analysis of the proposed designation. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et seq.), including whether it is prudent to designate critical habitat;
        (2) Specific information on the amount and distribution of Ceanothus ophiochilus or Fremontodendron mexicanum habitat, what areas should be included in the designations that were occupied at the time of listing that contain the features that are essential for the conservation of the species, and what areas that were not occupied at the time of listing that are essential to the conservation of the species and why;
        (3) Information concerning pollinator species for Ceanothus ophiochilus or Fremontodendron mexicanum and whether sufficient information exists to determine if such a biological feature should be considered a primary constituent element for either of these species (please see “Primary Constituent Elements” section of this proposed rule for a detailed discussion);
        (4) Whether any areas not currently known to be occupied by either species, but essential to the conservation of either species, should be included in the proposed designation;
        (5) Land use designations and current or planned activities in the mapped critical habitat subunits and their possible effects on proposed critical habitat;

        (6) The appropriateness of excluding non-Federal lands that contain Ceanothus ophiochilus occurrences within areas targeted for conservation within the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) from the final designation of critical habitat under section 4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) of the Act for details on the Western Riverside County MSHCP). Please provide information concerning whether the benefits of exclusion of any of these specific areas outweigh the benefits of their inclusion under section 4(b)(2) of the Act. If the Secretary determines the benefits of including these lands outweigh the benefits of excluding them, they will not be excluded from critical habitat;
        (7) The appropriateness of excluding lands that contain Fremontodendron mexicanum occurrences within areas of the San Diego Multiple Species Conservation Program (MSCP) and areas of the Otay Mountain Wilderness managed by the Bureau of Land Management (BLM) covered by the 1994 multiple agency Memorandum of Understanding (MOU 1994) from the final designation of critical habitat. F. mexicanum is not covered by the MSCP; however, other species that co-occur with F. mexicanum are covered by the MSCP. Please provide comments on whether the protection and management of the habitat for these co-occurring species are adequate to justify the exclusion of these lands under section 4(b)(2) of the Act. Also, we are seeking any information on the benefits of including or excluding these lands from the critical habitat designation;

        (8) The appropriateness of including lands in the Agua Tibia Mountains owned by the USFS and managed under its Land Management Plans for the Four Southern California National Forests from the final designation of critical habitat for Ceanothus ophiochilus. Please provide comments on how implementation of the management plan(s) in the Agua Tibia Mountains will or will not provide for conservation for C. ophiochilus. Also provide information on any minimization measures or monitoring plans for C. ophiochilus that will help insure that the occurrences of C. ophiochilus remain healthy and viable in the Cleveland National Forest. Finally, provide comments on the benefits of including or excluding these lands from the critical habitat designation;
        (9) Whether the benefits of exclusion of any particular area outweigh the benefits of inclusion under section 4(b)(2) of the Act;

        (10) Information on the extent to which any State and local environmental protection measures referred to in the draft economic analysis may have been adopted largely as a result of the listing of Ceanothus ophiochilus or Fremontodendron mexicanum;
        (11) Information on whether the draft economic analysis identifies all State and local costs attributable to the proposed critical habitat designation, and information on any costs that have been inadvertently overlooked;
        (12) Information on whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;
        (13) Information on whether the draft economic analysis correctly assesses the effect on regional costs associated with any land use controls that may derive from the designation of critical habitat;

        (14) Information on areas that could potentially be disproportionately impacted by designation of critical habitat for Ceanothus ophiochilus or Fremontodendron mexicanum;
        (15) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation of critical habitat, and in particular, any impacts on small entities or families; the reasons why our conclusion that the proposed designation of critical habitat will not result in a disproportionate effect to small businesses should or should not warrant further consideration; and other information that would indicate that the designation of critical habitat would or would not have any impacts on small entities or families;
        (16) Information on whether the draft economic analysis appropriately identifies all costs that could result from the designation; and
        (17) Information on whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

        Pursuant to section 4(b)(2) of the Act, an area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact.

        All previous comments and information submitted during the initial comment period from October 3, 2006, to December 4, 2006, for the proposed rule (71 FR 58340) need not be resubmitted, as they are currently part of our record and will be considered in the development of the final rule. If you wish to comment, you may submit your comments and materials concerning the draft economic analysis and the proposed rule by any one of several methods (see ADDRESSES). Our final designation of critical habitat will take into consideration all comments and any additional information we have received during both comment periods. On the basis of public comment on this analysis, the critical habitat proposal, and the final economic analysis, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        If submitting comments electronically, please also include “Attn: RIN 1018-AU77” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact the person listed under FOR FURTHER INFORMATION CONTACT.
        Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

        You may obtain copies of the proposed rule and draft economic analysis by mail from the Carlsbad Fish and Wildlife Office (see ADDRESSES section) or by visiting our Web site at http://www.fws.gov/carlsbad/.
        Background

        On August 10, 2004, the Center for Biological Diversity and California Native Plant Society challenged our failure to designate critical habitat for these two species as well as three other plant species ( Center for Biological Diversity et al. v. Gale Norton, Secretary of the Department of the Interior et al., C-04-3240 JL, N. D. Cal.). The Service agreed to withdraw our previous not prudent findings and submit for publication in the Federal Register a proposed designation of critical habitat, if prudent, on or before September 20, 2006, and a final critical habitat designation for these plants on or before September 20, 2007. In compliance with the court-approved settlement agreement, we published a proposed rule to designate critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum on October 3, 2006 (71 FR 58340). This rule identified a total of 644 acres (ac) (262 hectares (ha)) as critical habitat for these two species. Approximately 283 ac (115 ha) of land in Riverside County, California, were proposed as critical habitat for C. ophiochilus, and approximately 361 ac (147 ha) of land in San Diego County, California, were proposed as critical habitat for F. mexicanum.
        Critical habitat is defined in section 3 of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
        Draft Economic Analysis

        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. Based on the October 3, 2006, proposed rule to designate critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum (71 FR 58340), we have prepared a draft economic analysis of the proposed critical habitat designation.
        The current draft economic analysis estimates the foreseeable potential economic impacts of the proposed critical habitat designation and other conservation-related actions for these species on government agencies and private businesses and individuals. The draft economic analysis identifies potential costs will be $385,000 to $659,000 in undiscounted dollars over a 20-year period as a result of the proposed designation of critical habitat, including those costs coextensive with listing and recovery. Discounted future costs are estimated to be $325,000 to $559,000 ($22,000 to $38,000 annualized) at a 3 percent discount rate, or $272,000 to $471,000 ($26,000 to $44,000 annualized) at a 7 percent discount rate.

        The draft economic analysis considers the potential economic effects of actions relating to the conservation of Ceanothus ophiochilus and Fremontodendron mexicanum, including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to the designation of critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for C. ophiochilus and F. mexicanum in areas containing features essential to the conservation of the species. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (such as lost economic opportunities associated with restrictions on land use).

        This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this draft analysis looks retrospectively at costs that have been incurred since the date Ceanothus ophiochilus and Fremontodendron mexicanum were listed as endangered and threatened, respectively (October 13, 1998; 63 FR 54956), and considers those costs that may occur in the 20 years following a designation of critical habitat.

        As stated earlier, we solicit data and comments from the public on this draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal or its supporting documents to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        Required Determinations—Amended
        In our October 3, 2006, proposed rule (71 FR 58340), we indicated that we would be deferring our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders was available in the draft economic analysis. Those data are now available for our use in making these determinations. In this notice we are affirming the information contained in the proposed rule concerning Executive Order (E.O.) 13132; E.O. 12988, the Paperwork Reduction Act; and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). Based on the information made available to us in the draft economic analysis, we are amending our Required Determinations, as provided below, concerning E.O. 12866 and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the Unfunded Mandates Reform Act.
        Regulatory Planning and Review

        In accordance with E.O. 12866, this document is a significant rule because it may raise novel legal and policy issues. Based on our draft economic analysis of the proposed designation of critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum, costs related to conservation activities for C. ophiochilus and F. mexicanum pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $385,000 to $659,000 in undiscounted dollars over a 20-year period as a result of the proposed designation of critical habitat, including those costs coextensive with listing and recovery. Discounted future costs are estimated to be $325,000 to $559,000 ($22,000 to $38,000 annualized) at a 3 percent discount rate, or $272,000 to $471,000, ($26,000 to $44,000 annualized) at a 7 percent discount rate. Therefore, based on our draft economic analysis, we have determined that the proposed designation of critical habitat for C. ophiochilus and F. mexicanum will not result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) has not formally reviewed the proposed rule or accompanying economic analysis.
        Further, E.O. 12866 directs Federal agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has determined that the Federal regulatory action is appropriate, the agency will then need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.
        In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based upon our draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments received, this determination is subject to revision as part of the final rulemaking.
        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for Ceanothus ophiochilus or Fremontodendron mexicanum would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (such as residential and commercial development). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and thus will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; non-Federal activities are not affected by the designation.
        If this proposed critical habitat designation is made final, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

        In our draft economic analysis of the proposed critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of Ceanothus ophiochilus and Fremontodendron mexicanum and proposed designation of its critical habitat.
        Impacts of conservation activities are not anticipated to affect small entities in the following categories: Development, fire management on Federal lands, alien plant species management on Federal lands, and other activities on Federal lands. Chapter 2 of the economic analysis concludes that no development is likely in proposed critical habitat. Rural, large lot development may occur in areas adjacent to proposed critical habitat; however, the likelihood of this type of development and whether it will pose a threat to the habitat is unknown. As described in Chapters 3 through 5 of the economic analysis, the modifications to activities on Federal lands, including fire management activities, alien plant species management, and surveying and monitoring activities, will be borne by the USFS and BLM. The Federal government is not considered to be a small entity by the SBA. Accordingly, the small business analysis contained in Appendix A of the economic analysis focuses on the economic impacts of fire management and alien plant species management activities on private lands.
        Two private landowners in Riverside County are included in areas proposed as critical habitat. The total economic impact for these two landowners over the next 20 years is estimated to be $3,000 to $4,000 per year for fire management activities, and $1,000 to $2,000 per year for alien plant species management. Whether these two landowners qualify as a small business is unknown. However, since no more than two potential small businesses are estimated to occur within the area proposed as critical habitat, we certify that this proposed regulation will not result in a significant economic impact on a substantial number of small business entities. Please refer to our draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
        Executive Order 13211—Energy Supply, Distribution, and Use

        On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed designation of critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum is considered a significant regulatory action under E.O. 12866 due to its potentially raising novel legal and policy issues. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared without the regulatory action under consideration. The draft economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on the information in the draft economic analysis, energy-related impacts associated with C. ophiochilus and F. mexicanum conservation activities within proposed critical habitat are not expected. As such, the proposed designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use and a Statement of Energy Effects is not required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
        (b) We do not believe that this rule will significantly or uniquely affect small governments. As discussed in the draft economic analysis, the majority (75 percent) of the lands proposed as critical habitat are either on Federal lands or on private lands covered by the Western Riverside County MSHCP. The remaining 25 percent is privately-owned land. Consequently, since small governments do not appear to be effected by the proposed critical habitat designation, we do not believe that critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
        Executive Order 12630—Takings

        In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for C. ophiochilus and F. mexicanum does not pose significant takings implications.

        Author
        The primary authors of this notice are the staff of the Carlsbad Fish and Wildlife Office.
        Authority

        The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: March 26, 2007.
          David M. Verhey,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

       [FR Doc. E7-6186 Filed 4-4-07; 8:45 am]
      BILLING CODE 4310-55-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [KY-200108; IN121-1; FRL-6982-2]
        Determination of Attainment of Ozone Standard by Louisville, Kentucky and Indiana, Area and Determination Regarding Applicability of Certain Reasonable Further Progress and Attainment Demonstration Requirements

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The EPA is proposing to determine that the Louisville moderate ozone nonattainment area (Louisville area) has attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS). The Louisville area includes Jefferson County and portions of Bullitt and Oldham Counties, Kentucky, and Clark and Floyd Counties, Indiana. This proposed determination is based on three years of complete, quality-assured, ambient air monitoring data for the 1998 to 2000 ozone seasons that demonstrate that the area has attained the 1-hour ozone NAAQS. On the basis of this determination, EPA is also proposing to determine that State Implementation Plan (SIP) submissions for certain reasonable further progress (RFP) and attainment demonstration requirements, along with certain other related requirements of part D of Title 1 of the Clean Air Act (CAA) are no longer required for the Louisville area for so long as the area continues to attain the 1-hour ozone NAAQS. All previously-approved SIP revisions must continue to be implemented and enforced and are not affected by this action.

          DATES:
          Written comments on EPA's proposed action must be received on or before June 18, 2001.

          ADDRESSES:
          All comments should be addressed to: Allison Humphris, Environmental Scientist, Regulatory Planning Section, Air Planning Branch, U.S. Environmental Protection Agency, 61 Forsyth Street, SW, Atlanta, Georgia, 30303. J. Elmer Bortzer, Chief, Regulation Development Section, Air Programs Branch (AR-18J), United States Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. A copy of the air quality data and EPA's analysis are available at the following addresses for inspection during normal business hours: United States Environmental Protection Agency, Region 4, Air Planning Branch, Regulatory Planning Section, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960. United States Environmental Protection Agency, Region 5, Air Programs Branch (AR-18J), Regulation Development Section, 77 West Jackson Boulevard, Chicago, Illinois 60604.

          FOR FURTHER INFORMATION CONTACT:

          Allison Humphris, Environmental Scientist, Regulatory Planning Section, Air Planning Branch, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW, Atlanta, Georgia, 30303, (404) 562-9030, (humphris.allison@epa.gov). Ryan Bahr, Environmental Engineer, Regulation Development Section, Air Programs Branch (AR-18J), United States Environmental Protection Agency, Region 5, Chicago, Illinois 60604, (312) 353-4366, (bahr.ryan@epa.gov).

        SUPPLEMENTARY INFORMATION:

          Table of Contents
          I. Determination of Attainment
          A. What action is EPA proposing to take?
          B. Why is EPA taking this action?
          C. How was the number of estimated exceedances at the Charlestown Monitor determined?
          D. What would be the effect of this action?
          E. What is the background for this action?
          F. Where is the public record and where do I send comments?
          II. What administrative requirements did EPA consider?

        I. Determination of Attainment
        A. What Action is EPA Proposing to Take?

        The EPA is proposing to determine that the Louisville area has attained the 1-hour ozone NAAQS. The Louisville area includes Jefferson County and portions of Bullitt and Oldham Counties, Kentucky, and Clark and Floyd Counties, Indiana. On the basis of this determination, EPA is also determining that certain requirements of part D of Title I of the CAA do not apply to the Louisville area. SIP submittals based on these requirements are no longer required so long as the Louisville area continues to attain the NAAQS. These requirements include RFP (see the general requirement of section 172(c)(2) and the more specific requirement of section 182(b)(1) for a plan that reduces volatile organic compound (VOC) emissions by 15%), attainment demonstration (see the general requirement of section 172(c)(1)) and the specific requirement of section 182(j) for a multi-state attainment demonstration) and contingency measures (see the general requirement of section 172(c)(9)). Making these sections inapplicable to the area means that the States are not required to submit future SIP revisions related to the sections cited above regarding attaining the NAAQS. Furthermore, EPA would not be required to act on the planning SIPs that have been submitted and not yet approved. However, all previously-approved SIP revisions must continue to be implemented and enforced and are not affected by this action. In addition EPA will continue to process any submittals that have not yet been approved and revise the SIP to incorporate State- and locally-adopted rules and other legally-enforceable requirements which have helped the area come into attainment prior to the effective date for this rule. This will ensure that the rules the area has depended on for attainment are permanent and enforceable as part of the SIP.
        B. Why is EPA Taking This Action?
        The EPA proposes to make this determination for the Louisville area because complete, quality-assured, ambient air monitoring data for the 1998 to 2000 ozone seasons demonstrate that the 1-hour ozone NAAQS has been attained in the entire Louisville area. For ozone, an area may be considered attaining the 1-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.9 and appendix H, based on three complete, consecutive calendar years of quality-assured ambient monitoring data. A violation of the 1-hour ozone NAAQS occurs when the annual average number of expected exceedances at a monitoring site is greater than 1.0 per year, using conventional rounding techniques.
        The calculation for expected exceedances in a three-year period is computed by averaging the three estimated exceedances (one for each of the three years) during this period. The calculation for the estimated exceedances takes into account not only the number of exceedances during a given ozone season, but also completeness of data, and days in the ozone season that can be assumed to be less than the level of the standard. An example calculation of estimated exceedances at the Charlestown monitor is given in section C. A daily exceedance occurs when the maximum hourly ozone concentration during a given day is greater than 0.12 parts per million (ppm), using conventional rounding techniques. Monitoring data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in EPA's Aerometric Information Retrieval System (AIRS). The monitors should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.
        The Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet (Cabinet) and the Indiana Department of Environmental Management (IDEM) submitted quality-assured ozone monitoring data to EPA for the 1998 to 2000 ozone monitoring seasons. Table 1 below summarizes these air quality data.

            Table 1.—1-hour Ozone NAAQS Exceedances in the Louisville, Kentucky-Indiana Area from 1998 to 2000

            Site
            County
            Year
            Exceedances measured
            Estimated exceedances

            Charlestown
            Clark, IN
            1998
            3
            3.1

            Charlestown
            Clark, IN
            1999
            0
            0.0

            Charlestown
            Clark, IN
            2000
            0
            0.0

            New Albany
            Floyd, IN
            1998
            2
            2.0

            New Albany
            Floyd, IN
            1999
            0
            0.0

            New Albany
            Floyd, IN
            2000
            0
            0.0

            Bates
            Jefferson, KY
            1998
            1
            1.2

            Bates
            Jefferson, KY
            1999
            0
            0.0

            Bates
            Jefferson, KY
            2000
            0
            0.0

            Buckner
            Oldham, KY
            1998
            1
            1.1

            Buckner
            Oldham, KY
            1999
            1
            1.2

            Buckner
            Oldham, KY
            2000
            0
            0.0

            Sheperdsville
            Bullitt, KY
            1998
            0
            0.0

            Sheperdsville
            Bullitt, KY
            1999
            0
            0.0

            Sheperdsville
            Bullitt, KY
            2000
            0
            0.0

            Watson
            Jefferson, KY
            1998
            1
            1.2

            Watson
            Jefferson, KY
            1999
            0
            0.0

            Watson
            Jefferson, KY
            2000
            0
            0.0

            WLKY-TV
            Jefferson, KY
            1998
            1
            1.1

            WLKY-TV
            Jefferson, KY
            1999
            0
            0.0

            WLKY-TV
            Jefferson, KY
            2000
            0
            0.0

        During the 1998 to 2000 time period, the Charlestown monitor recorded a total of 3 exceedances, with all 3 exceedances occurring during 1998. Remaining monitors recorded 2 or fewer exceedances for this same time period. Calculation of the estimated exceedances for 1998 for the Charlestown monitor, in accordance with 40 CFR part 50, appendix H, yields 3.1 estimated exceedances for 1998. Due to no exceedance occurring at the Charlestown monitor in 1999 or 2000, the total estimated exceedances for the years of 1998 through 2000 is also 3.1, or 1.0 average expected exceedance per year. This indicates that the monitoring site with the most exceedances is attaining the 1-hour ozone NAAQS. As a result, the Louisville area is currently meeting the air quality requirement for this determination of attainment of the 1-hour ozone NAAQS.
        C. How was the Number of Estimated Exceedances at the Charlestown Monitor Determined?

        During the 1998 to 2000 time period, the Charlestown monitor was determined to have a total of 3.1 estimated exceedances. This value was determined in accordance with 40 CFR 50.9 and appendix H, as follows: e = v + [(v/n)*(N-n-z)] where:

            Variable description
            Value for Charlestown monintor for 1998
            Comments

            e = the estimated number of exceedances for the year
            3.1
            Calculated.

            N = the number of required monitoring days in the year
            183
            Indiana's ozone season is April 1-September 30.

            n = the number of valid daily maxima
            172
            Days with valid data based on 40 CFR part 50 and appendix H.

            v = the number of daily values above the level of the standard
            3
            Based on monitored values.

            z = the number of days assumed to be less than the standard level
            3
            Based on 40 CFR part 50. Appendix H, for days that were likely below the standard.

        The current version of the AIRS database calculates the Charlestown monitor as having 3.2 estimated exceedances during the 1998 ozone season, based on the availability of valid AIRS data for 172 out of 183 ozone season days. However, EPA has determined, in accordance with 40 CFR part 50, appendix H, that for three days during the 1998 ozone monitoring season for which no air quality data was available, it is highly unlikely that the ozone NAAQS was exceeded, and air quality can be assumed to have been below the ozone NAAQS. Part 50, appendix H states, in part, that: “Some allowance should also be made for days for which valid daily maximum hourly values were not obtained but which would quite likely have been below the standard.” It then suggests a criterion that “may be used” for ozone. Since appendix H lists only a permissible, but not exclusive method for determining when a missing value may be assumed to have been below the standard, it leaves room for Agency discretion to define alternative conditions for making such a determination. For two days early in the 1998 ozone monitoring season (April 3-4, 1998), this conclusion is based on records of valid daily maxima well below the standard for the remaining 6 Louisville area monitors and overwhelming meteorological evidence that conditions were not highly conducive to ozone formation. In addition, no exceedances have ever been recorded at this monitoring site in early April. For a third day (August 1, 1998), this conclusion is based on records of valid daily maxima below the 75 percent level of the standard for the Charlestown monitor for the days immediately preceding and following this date. Calculation of the estimated exceedances for the Charlestown monitor using the above equation, and assuming that the ozone standard was not exceeded for 175 out of 183 ozone season days yields a total of 3.1 estimated exceedances for the 1998 ozone season. Since no exceedance was recorded for 1999 or 2000, the average number of expected exceedances for this monitor are 1.0 per year for the three-year period of 1998 through 2000, using conventional rounding techniques.
        D. What Would Be the Effect of This Action?
        The EPA believes it is reasonable to interpret that the Clean Air Act provisions regarding RFP and attainment demonstrations, along with certain other related provisions, do not require certain SIP submissions if an ozone nonattainment area subject to those requirements is monitoring attainment of the ozone standard (i.e., has three consecutive years of complete, quality-assured, air quality monitoring data) without those provisions being implemented. Specifically, the requirements of sections 172(c)(1) and 182(j) concerning submission of an ozone attainment demonstration, the requirements of sections 172(c)(2) and 182(b)(1) concerning submission of a 15% VOC emission reduction plan, and the requirements of section 172(c)(9) concerning contingency measures for RFP or attainment will not be applicable to the Louisville area. EPA intends, however, to approve the regulations that were submitted by the Commonwealth with its 15% plan, since these regulations were adopted by the Commonwealth or the Air Pollution Control District of Jefferson County prior to 1998 and provided permanent and enforceable reductions for the Louisville area during the 1998 to 2000 ozone seasons. Likewise, previously-approved SIP revisions must continue to be implemented and enforced and are not affected by this action.

        The above determinations are contingent upon continued monitoring and continued attainment and maintenance of the 1-hour ozone NAAQS in the Louisville area. If a violation of the 1-hour ozone NAAQS is monitored in any of the five counties, EPA will initiate rulemaking action to reinstate these requirements in the Federal Register. A violation in any of the five counties would mean that the entire area would thereafter have to address the above-cited requirements, since the basis for the determination that they do not apply would no longer exist.
        E. What Is the Background for this Action?

        Subpart 2 of part D of Title I of the CAA contains various air quality planning and SIP submission requirements for 1-hour ozone nonattainment areas. EPA interprets the general provisions of subpart 1 of part D of Title I (sections 171 and 172) and the more specific attainment demonstration and related provisions of subpart 2 (section 182) to not require the submission of SIP revisions concerning RFP, attainment demonstrations, or contingency measures for areas where the monitoring data show that the area is attaining the 1-hour ozone standard (See Sierra Club vs EPA, 99 F.3d 1551 (10th Cir. 1996)). This rationale is described in a memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, entitled “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” dated May 10, 1995. EPA has previously applied this interpretation in a number of areas, including Cincinnati (65 FR 37879 (June 19, 2000)), Grand Rapids (61 FR 31831 (June 21, 1996)), Cleveland (61 FR 20458 (May 7, 1996)), and Salt Lake City (60 FR 36723 (July 18, 1995)).

        First, with respect to RFP, section 171(1) states that, for purposes of part D of Title I, RFP “means such annual incremental reductions in the emissions of the relevant air pollutant as are required by this part or may be reasonably required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” Thus, whether dealing with the general RFP requirement of section 172(c)(2), or the more specific RFP requirements of subpart 2 for classified ozone nonattainment areas (such as the 15% plan requirement of section 182(b)(1)), the stated purpose of RFP is to ensure attainment by the applicable attainment date. If an area has, in fact, attained the standard without implementing RFP, the stated purpose of the RFP requirement will have already been fulfilled, and EPA does not believe that the area need submit SIP revisions providing for the further emission reductions described in the RFP provisions of section 182(b)(1).
        EPA notes that it took this view with respect to the general RFP requirement of section 172(c)(2) in the General Preamble for the Interpretation of title I of the Clean Air Act Amendments of 1990 (57 FR 13498, April 6, 1992), and it is now extending that interpretation to the specific provisions of subpart 2. In the General Preamble, EPA stated, in the context of a discussion of the requirements applicable to the evaluation of requests to redesignate nonattainment areas to attainment, the “requirements for RFP will not apply in evaluating a request for redesignation to attainment since, at a minimum, the air quality data for the area must show that the area has already attained. Showing that the state will make RFP towards attainment will, therefore, have no meaning at that point.” (57 FR 13564).
        Second, with respect to attainment demonstration requirements, an analogous rationale can be applied. Section 182(b)(1) requires that the plan provide for “such specific annual reductions in emissions * * * as necessary to attain the national primary ambient air quality standard by the attainment date applicable under the CAA.” If an area has in fact monitored attainment of the relevant NAAQS, EPA believes there is no need for an area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation of certain section 172(c) requirements provided by EPA in the General Preamble to Title I. As stated in the Preamble, no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached” (57 FR 13564). Upon attainment of the NAAQS, the focus of state planning efforts shifts to the maintenance of the NAAQS and the development of a maintenance plan under section 175A.
        Finally, similar reasoning applies to the contingency measure requirements of section 172(c)(9) of the CAA. EPA has previously interpreted the contingency measure requirement of section 172(c)(9) as no longer being applicable once an area has attained the standard since those “contingency measures are directed at ensuring RFP and attainment by the applicable date” (57 FR 13564). EPA has excercised this policy most recently in approvals for the Cincinnati, Ohio, and Muskegon, Michigan, areas (65 FR 37879 and 65 FR 52651).

        EPA emphasizes that the lack of a requirement to submit the SIP revisions discussed above exists for only so long as an area designated nonattainment continues to attain the standard. If EPA subsequently determines that such an area has violated the NAAQS, the basis for the determination that the area need not make the pertinent SIP revisions would no longer exist. EPA would notify the state of that determination and would also provide notice to the public in the Federal Register. Such a determination would mean that the area would have to address the pertinent SIP requirements within a reasonable amount of time, which EPA would establish taking into account the individual circumstances surrounding the particular SIP submissions at issue. Thus, a determination that an area need not submit one of the above-mentioned SIP submittals amounts to no more than a determination that new submittals are no longer required for the Louisville area for so long as the area continues to attain the standard.
        The state must continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area. The air quality data relied upon to determine that the area is attaining the 1-hour ozone NAAQS must be consistent with 40 CFR part 58 requirements and other relevant EPA guidance and recorded in AIRS.
        The determination that is being made with this Federal Register document is not equivalent to redesignation of this area to attainment. Attainment of the ozone NAAQS is only one of the criteria set forth in section 107(d)(3)(E) that must be satisfied for an area to be redesignated to attainment. To be redesignated, the state must submit and receive full approval of a redesignation request for the area that satisfies all of the criteria of that section, including the requirement of a demonstration that the improvement in the area's air quality is due to permanent and enforceable reductions and the requirement that the area have a fully approved SIP meeting all of the applicable requirements under section 110 and part D and a fully approved maintenance plan.
        The determinations made in this document do not shield an area from future EPA action to require emissions reductions from sources in the area where there is evidence, such as photochemical grid modeling, showing that emissions from sources in the area contribute significantly to nonattainment in, or interfere with maintenance by, any other states with respect to the NAAQS (see section 110(a)(2)(D)). The EPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of the CAA to require such emission reductions if necessary and appropriate to deal with transport situations.
        F. Where Is the Public Record and Where Do I Send Comments?

        The official record for this proposed rule is located at the addresses in the ADDRESSES section at the beginning of this document. The addresses for sending comments are also provided in the ADDRESSES section at the beginning of this document. Public comments are solicited on EPA's proposed rulemaking action. Public comments received by June 18, 2001 will be considered in the development of EPA's final rulemaking action.
        II. What Administrative Requirements did EPA Consider?

        Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely proposes to determine that air quality meets federal requirements and imposes no additional requirements. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to determine that air quality meets federal requirements and does not impose any additional enforceable duty, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it determines that air quality meets federal requirements, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

        This rule does not involve technical standards, but air quality considerations governed by federal regulations. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

          Authority:
          42 U.S.C. 7401 et seq.

          Dated: April 20, 2001.
          Dated: May 8, 2001.
          A. Stanley Meiburg,
          Acting Regional Administrator, Region 4.
          Norman Neidergang,
          Acting Regional Administrator, Region 5.

      [FR Doc. 01-12439 Filed 5-16-01; 8:45 am]
      BILLING CODE 6560-50-P