[Federal Register: April 22, 2008 (Volume 73, Number 78)]
[Rules and Regulations]
[Page 21528-21538]
[DOCID:fr22ap08-6]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[EPA-HQ-OAR-2004-0439, FRL-8556-2]
RIN 2060-AN12

Petition for Reconsideration and Withdrawal of Findings of
Significant Contribution and Rulemaking for Georgia for Purposes of
Reducing Ozone Interstate Transport

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this action, EPA is amending a final rule it issued under
Section 110 of the Clean Air Act (CAA) related to the transport of
nitrogen oxides (NOX). On April 21, 2004, we issued a final
rule (Phase II NOX SIP Call Rule) that required the State of
Georgia (Georgia) to submit revisions to its State Implementation Plan
(SIP) to include provisions that prohibit specified amounts of
NOX emissions--one of the precursors to ozone (smog)
pollution--for the purposes of reducing NOX and ozone
transport across State boundaries in the eastern half of the United
States. This rule became effective on June 21, 2004.
    Subsequently, the Georgia Coalition for Sound Environmental Policy
(GCSEP

or Petitioners) filed a Petition for Reconsideration requesting that
EPA reconsider the applicability of the NOX SIP Call Rule to
Georgia.
    In response to this Petition, and based upon review of additional
available information, EPA proposed to remove Georgia from the
NOX SIP Call Rule. (June 8, 2007). Specifically, EPA
proposed to rescind the applicability of the requirements of the Phase
II NOX SIP Call Rule to Georgia, only. Six parties commented
on the proposed rule. No requests were made to hold a public hearing.
After considering these comments, EPA is issuing a final rule as
proposed.

DATES: This final rule is effective on May 22, 2008.

ADDRESSES: The EPA has established a docket for this action, identified
by Docket ID No. EPA-HQ-OAR-2005-0439. All documents in the docket are
listed in the http://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 http://www.regulations.gov or in hard copy at the Air
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. This Docket Facility 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<PHONE_NUMBER>, and the telephone
number for the Air Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Tim Smith, Air Quality Policy
Division, Geographic Strategies Group, (C539-04), Environmental
Protection Agency, Research Triangle Park, NC 27711, telephone (919)
541-4718, e-mail<EMAIL_ADDRESS>For legal questions, please contact
Winifred Okoye, U.S. EPA, Office of General Counsel, Mail Code 2344A,
1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone (202)
564-5446, e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action removes the applicability of certain requirements
related to NOX emissions in Georgia. If these requirements
were not removed, they would potentially affect electric utilities,
cement manufacturing, and industries employing large stationary source
internal combustion engines.

B. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does This Action Apply to Me?
    B. How Is This Preamble Organized?
II. Background
    A. Background on NOX SIP Call Rule, Subsequent
Litigation and Rulemaking Related to Georgia
    B. GCSEP Requests Related to Phase II NOX SIP Call
Rule
III. Proposed Response to GCSEP's Petition for Reconsideration
    A. Proposed Action
    B. Rationale for Proposed Action
    C. Final Action
IV. Response to Comments on Proposal
    A. Legal Rationale
    B. Emissions Cap
    C. Comparison With the Atlanta State Implementation Plan
    D. Other Issues
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act
    L. Judicial Review

II. Background

A. Background on NOX SIP Call, Subsequent Litigation and Rulemaking
Related to Georgia

    On October 27, 1998, EPA took final action to prohibit specified
amounts of emissions of oxides of NOX, one of the main
precursors of ground-level ozone, from being transported across State
boundaries in the eastern half of the United States. (The
NOX SIP Call Rule) (63 FR 57356), (October 27, 1998). We
found that sources and emitting activities in 22 States and the
District of Columbia (23 States) \1\ were emitting NOX in
amounts that significantly contribute to downwind nonattainment of the
1-hour ozone national ambient air quality standard (NAAQS or standard).
(63 FR 57356). We also determined separately that sources and emitting
activities in these 23 States were emitting NOX in amounts
that significantly contribute to and interfere with maintenance of
downwind nonattainment of the 8-hour ozone NAAQS (63 FR 57358, 57379).
To determine significant contribution, we examined both the air quality
impacts of emissions and the amount of reductions that could be
achieved through the application of highly cost-effective controls. The
air quality impacts portion of our significant contribution analysis
relied on state specific modeling, and modeling and recommendations by
the Ozone Transport Assessment Group (OTAG) 62 FR 60335 (November 7,
1997), and 63 FR 57381-57399.
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    \1\ The 23 States were Alabama, Connecticut, Delaware, District
of Columbia, Georgia, Illinois, Indiana, Kentucky, Maryland,
Massachusetts, Michigan, Missouri, North Carolina, New Jersey, New
York, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee,
Virginia, West Virginia, and Wisconsin (63 FR 57394).
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    This analysis examined the impact of upwind emissions on downwind
nonattainment areas. We explained that a downwind area should be
considered,

``nonattainment,'' for purposes of section 110(a)(2)(D)(i)(I), under
the 1-hour ozone NAAQS if the area (as of 1994-96 time period) had
nonattainment air quality and if the area was modeled to have
nonattainment air quality in the year 2007, after implementation of
all measures specifically required of the area under the CAA as well
as implementation of Federal measures required or expected to be
implemented by that date.

63 FR 57386; See also 63 FR 57373-75; 62 FR 60324-25. We also explained
that ``nonattainment [area] includes areas that have monitored
violations of the standard and areas that `contribute to ambient air
quality in a nearby area' that is violating the standard.'' 63 FR
57373. Thus, to qualify as a downwind nonattainment receptor, an area
had to be both in current nonattainment and also modeled to have
nonattainment air quality in 2007. An area shown to be in attainment at
either time was not considered a downwind receptor. 63 FR 57371, 73-75,
57382-83. See also 63 FR 57385-87 for our discussion on the
determination of downwind nonattainment receptors.
    Further, we assessed each upwind State's contribution to 1-hour
standard downwind nonattainment independent of the State's contribution
to 8-hour standard nonattainment. 62 FR 60326; 63 FR 57377 and 57395.
We determined and concluded that the level of NOX emissions
reductions necessary to address the significant contribution for the 8-
hour NAAQS would be achieved using the same control measures as
required for the 1-hour standard (63 FR

57446). Therefore, we promulgated only one NOX emissions
budget for each of the affected upwind States (63 FR 57439). Further,
we required these States to submit revised SIPs, prohibiting those
amounts of NOX emissions such that any remaining emissions
would not exceed the level specified in the NOX SIP Call
regulations for that State in 2007. 62 FR 60364-5; 63 FR 57378 and
57426.
    With regard to Georgia, we determined that sources and emitting
activities in Georgia were significantly contributing to 1-hour
standard nonattainment in Birmingham, Alabama and Memphis, Tennessee
(63 FR 57394). At the time the NOX SIP Call Rule was being
developed, monitored air quality data for 1994-1996 indicated that
Memphis, Tennessee had nonattainment air quality \2\ although we had
redesignated the Memphis, Tennessee nonattainment area as an attainment
area in 1995.\3\ 60 FR 3352 (January 17, 1995). Further, Birmingham,
Alabama was a designated nonattainment area for the 1-hour ozone NAAQS
at the time of promulgation of the NOX SIP Call rule. In
addition, the modeling done at that time showed that the Memphis and
Birmingham areas were modeled to have nonattainment air quality for the
1-hr standard in the year 2007. Thus, at that time Memphis, Tennessee
and Birmingham, Alabama were ``nonattainment'' for purposes of the
NOX SIP Call Rule.
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    \2\ Monitored air quality data indicated that the Memphis,
Tennessee nonattainment area had nonattainment air quality from 1994
through 2000. Since 2001, the Memphis, Tennessee nonattainment area
has had monitored attainment air quality data.
    \3\ In the NOX SIP Call Rule, we relied on the
designated area solely as a proxy to determine which areas have air
quality in nonattainment. ``Our reliance on designated nonattainment
areas for purposes of the 1-hour NAAQS does not indicate that the
reference in section 110(a)(2(D)(i)(I) to `nonattainment' should be
interpreted to refer to areas designated nonattainment.'' 63 FR
57375 n.25.
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    A number of parties, including certain States as well as industry
and labor groups, challenged the NOX SIP Call Rule.
Specifically, Georgia and Missouri industry petitioners, citing the
OTAG modeling and recommendations, maintained that EPA had record
support for the inclusion of only the eastern part of the state of
Missouri (Missouri), and northern Georgia as contributing significantly
to downwind nonattainment. The United States Court of Appeals for the
District of Columbia (D.C. Circuit or Court), upheld our findings of
significant contribution for almost all jurisdictions covered by the
NOX SIP Call, with respect to the 1-hour standard \4\ but
vacated and remanded the inclusion of Georgia and Missouri, Michigan v.
EPA, 213 F. 3d 663 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 1225
(2001) (Michigan). The Court agreed with the litigants that only the
eastern portion of Missouri and northern portion of Georgia were within
the geographic area for photochemical modeling known as the ``fine
grid,'' and thus, that the record for the rulemaking supported only
including those portions of the two States.\5\
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    \4\ In light of various challenges to the 8-hour standard, we
stayed the 8-hour basis for the NOX SIP Call rule
indefinitely. (65 FR 56245), (September 18, 2000).
    \5\ As the Court stated, ``[a]ccordingly, they say the
NOX Budget for Missouri and Georgia should be based
solely on those emissions.'' 213 F.3d at 684.
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    Subsequently, in response to the Court decision in Michigan, we
proposed (in what is known as the ``Phase II NOX SIP Call
rule''), the inclusion of only the fine grid parts of Georgia and
Missouri in the NOX SIP Call with respect to the 1-hour
standard only. (67 FR 8396, (February 22, 2002)). We also proposed
revised NOX budgets for Georgia and Missouri that would
include only the fine grid portions of these States. On April 21, 2004,
we finalized the Phase II NOX SIP Call rule. This rule
included eastern Missouri and northern Georgia as proposed, allocated
revised NOX budgets that reflected the inclusion of sources
in only these areas, and set revised SIP submittal and full compliance
dates of April 1, 2005 and May 1, 2007, respectively. 69 FR 21604,
(April 21, 2004).

B. GCSEP Requests Related to Phase II NOX SIP Call Rule

    After our promulgation of the Phase II NOX SIP Call
rule, GCSEP, on June 16, 2004, took several legal actions: (1) A
request that EPA reconsider the rulemaking in light of new information
(2) a request that EPA stay the effectiveness of the rule pending a
review of that information, and (3) a formal challenge to the rule in
Federal Courts.
    Petition for Reconsideration. GCSEP requested that EPA ``convene a
proceeding for reconsideration of the rule,'' under section
307(d)(7)(B) of the Act. (Petition for Reconsideration, June 16, 2004)
(Petition.) GCSEP made this request based on assertions that:

--Certain events occurred after the close of the notice and comment
period on our February 22, 2002, proposal (that is, these events
occurred after April 15, 2002), and
--EPA needed to reopen the rule for public notice and comment on those
specific events.

    GCSEP asserted that it ``was impracticable to raise [its] objection
within [the provided comment period] or [that] the grounds for [its]
objection arose after the public comment period (but within the time
specified for judicial review).'' CAA Section 307(d)(7)(B). In
addition, GCSEP further asserted that its objection was ``of central
relevance to the outcome of the rule.'' CAA Section 307(d)(7)(B).
    Request for Stay of Effectiveness. GCSEP also requested an
administrative stay of the effectiveness of the Phase II NOX
SIP Call Rule as it relates to Georgia only. The stay would delay the
applicability of Phase II NOX SIP Call requirements to
Georgia during the period EPA would conduct notice-and-comment
rulemaking to address the issues raised in the Petition. On March 1,
2005, EPA proposed to stay the effectiveness of the Phase II
NOX SIP Call Rule, as requested by GCSEP, as to Georgia
only. (70 FR 9897, (March 1, 2005)). Four parties commented on the
proposed rule, raising issues related to the merits of the stay, and
issues related to the merits of the Petition. On August 31, 2005, EPA
finalized, as proposed, a stay of the effectiveness of the Phase II
NOX SIP Call Rule as it related to Georgia only. (70 FR
51591, (August 31, 2005)). EPA also responded to comments on the stay
but indicated that it would respond to comments on the merits of the
Petition in a subsequent rulemaking that would address the Petition.
    Challenge in Circuit Court. Finally, GCSEP filed a challenge to the
Phase II NOX SIP call rule in the Court of Appeals for the
11th Circuit, which has since been transferred to the D.C. Circuit.
Georgia Coalition for Sound Environmental Policy v. EPA, Case No. 04-
13088-C. The EPA and GCSEP have requested and the Court has granted the
request to hold the challenge in abeyance pending completion of the
present rulemaking.

III. Proposed Response to GCSEP's Petition For Reconsideration

A. Proposed Action

    In a June 8, 2007, rulemaking notice, EPA initiated the process to
respond to the Petition. In that notice, we proposed to remove only
Georgia from inclusion in the Phase II NOX SIP call rule. In
the proposal, EPA specifically noted that we were not reopening any
other portions of the NOX SIP Call and Phase II
NOX SIP Call rules for public comment and reconsideration.
72 FR 31774 (June 8, 2007).
    In the Petition, GCSEP had argued that Georgia did not meet EPA's
stated

rationale for the NOX SIP call rule when EPA promulgated the
Phase II NOX SIP Call rule. In short, GCSEP argued that (1)
EPA based its inclusion of northern Georgia on a finding that northern
Georgia contributes to nonattainment of the one-hour standard in
Birmingham, Alabama and Memphis, Tennessee; (2) but that neither
Birmingham nor Memphis was a nonattainment area at the time of the
Phase II rulemaking; and (3) as a result of the revised attainment
status of Birmingham and Memphis, there are no 1-hour ozone
nonattainment areas in any States affected by NOX emissions
from northern Georgia, and (4) therefore northern Georgia no longer
satisfied EPA's stated rationale for inclusion in the NOX
SIP Call Rule.
    At proposal, we explained that in the 1998 NOX SIP Call
Rule, we articulated a test for defining a given downwind ``receptor''
location as ``nonattainment'' under section 110(a)(2)(D)(i)(I). We
defined ``nonattainment'' areas as including ``areas that have
monitored violations of the standard and areas that 'contribute to
ambient air quality in a nearby area' that is violating the standard''
(63 FR 57373; See also, 63 FR 57375-85). Additionally, as noted
previously, to be defined as ``nonattainment'' receptors, the receptor
also had to be modeled to have nonattainment air quality in the year
2007 when SIP Call controls would be in place.
    As earlier explained, with regard to Georgia, EPA had determined
that sources and emitting activity in that State emit NOX in
amounts that significantly contribute to nonattainment of the 1-hour
ozone standard in the Birmingham, Alabama and Memphis, Tennessee
nonattainment areas (63 FR 57394). Although we had redesignated the
Memphis, Tennessee nonattainment area in 1995, monitored air quality
data for 1994-1996 indicated nonattainment air quality.\6\ While
Birmingham, Alabama was designated nonattainment for the 1-hour ozone
NAAQS and also had nonattainment air quality. Thus, at the time of the
promulgation of the 1998 NOX SIP Call rule, both Memphis,
Tennessee and Birmingham, Alabama were in ``nonattainment'' for
purposes of the NOX SIP Call Rule. In addition, the earlier
referenced modeling results indicated that both areas were also
projected to have nonattainment air quality in 2007.
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    \6\ Monitored air quality data indicated that the Memphis,
Tennessee nonattainment area had nonattainment air quality from 1994
through 2000. Since 2001, the Memphis, Tennessee nonattainment area
has had monitored attainment air quality data.
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    We have now redesignated both of these areas as 1-hour ozone
attainment areas and both currently have monitored air quality data
that does not violate the 1-hour ozone standard. Specifically, on March
12, 2004, we redesignated Birmingham, Alabama, to attainment of the 1-
hour ozone NAAQS. 69 FR 11798, (March 12, 2004). In addition, the
Memphis, Tennessee nonattainment area, which was redesignated in 1995
has had monitored attainment air quality data since 2001.
    Therefore, we agree with GCSEP that at promulgation of the Phase II
NOX SIP Call Rule, both Memphis, Tennessee and Birmingham,
Alabama are now in attainment of the 1-hour ozone standard. Thus, both
areas no longer meet the definition of ``nonattainment'' used in the
1998 NOX SIP Call to identify downwind receptor areas for
the air quality impacts portion of the significant contribution
analysis.

B. Final Action

    At promulgation of the Phase II NOX SIP Call Rule, both
Memphis, Tennessee and Birmingham, Alabama were in attainment of the 1-
hour ozone standard. In light of the fact that both downwind receptor
areas are no longer ``nonattainment'' areas, for purposes of the
significant contribution analysis, we are withdrawing our findings of
significant contribution for Georgia for the 1-hr ozone standard, as
proposed. This in effect means that Georgia is no longer required to
submit a revised SIP that prohibits certain amounts of NOX
emissions under the Phase II NOX SIP Call Rule.

IV. Response to Comments on the Proposed Rule

    Six commenters submitted comments on the June 8, 2007 proposal. The
comments are summarized below along with EPA's responses. In this
section, we are also responding to those comments on the merits of this
Petition that we received at proposal of the stay of the effectiveness
of the NOX SIP Call rule in Georgia and had indicated would
be better addressed in the context of this rulemaking. 70 FR 51591,
51594 (August 31, 2005).

A. Legal Rationale

    Comment: Several commenters agreed with EPA's proposed rationale
for removing Georgia from the NOX SIP Call rule. These
commenters agreed with EPA that Georgia no longer met EPA's criteria
for ``significant contribution'' when Birmingham was redesignated as
attainment area.
    Response: EPA agrees with these commenters.
    Comment: One commenter stated that given the NOX
emissions reduction requirements that are already in place in Georgia,
implementing the NOX SIP Call rule would not result in
further NOX emissions reductions, particularly from
electricity generating units (EGUs). This commenter asserted that
requiring Georgia to implement the NOX SIP Call requirements
without regard to those reductions already achieved and required in the
future, would be ``arbitrary, capricious and not in accordance with the
law.''
    Response: As earlier stated, in the June 8, 2007, proposal we
explained that our inclusion of Georgia in the Phase II NOX
SIP Call rule was based on our definition of ``nonattainment'' and
determination of ``significant contribution to downwind nonattainment''
as articulated in the 1998 NOX SIP Call rule. 72 FR 31773.
Based on this definition and determination, we had found that emissions
activities from northern Georgia contributed significantly to
nonattainment of the one-hour ozone standard in both Memphis, Tennessee
and Birmingham, Alabama. 72 FR 31774. We also explained at proposal
that both Memphis, Tennessee and Birmingham, Alabama were designated as
attainment areas at the time of the Phase II NOX SIP Call
Rule. 72 FR 31774. Consequently, this rulemaking reflects our belief
that emissions activities in Georgia did not meet the 1998
NOX SIP Call rule definition and determination at the time
of the Phase II NOX SIP Call Rule and thus, that emissions
from northern Georgia could no longer be identified as ``contributing
significantly'' to downwind nonattainment problems. Thus, although the
commenter suggests we consider achieved and future reductions, our
basis for this action does not rely on other emissions controls in
Georgia.
    Comment: One commenter disagreed with both EPA's proposed removal
of Georgia, and stated rationale for the removal. This commenter noted
that Michigan, 213 F.3d 663, did not question the inclusion of the
northern Georgia or the ``fine grid'' portion of the NOX SIP
Call photochemical modeling in the NOX SIP Call rule. This
commenter believed that because the inclusion of the fine grid portion
of Georgia was never in question, EPA cannot legally question that now.
This commenter also asserted that the grounds presented by GCSEP are
not of ``central relevance to the outcome of the rule'' because the
inclusion of the ``fine

grid'' portion of Georgia was not at issue and therefore, that
reconsideration of Georgia's inclusion in the NOX SIP Call
rule is not appropriate. The commenter asserted that the only
``relevant'' issues were the line between the fine grid and coarse grid
and the calculation of emissions budgets, neither of which were
addressed by the Petition. One commenter disagreed with another
commenter's assertion that EPA cannot revisit the original findings as
it related to Georgia. This commenter believed that the issue of
whether the Court questioned any conclusions on ``significant
contribution'' is irrelevant in this context because the facts and
issues presented in this rulemaking were not before the Court in
Michigan.
    Response: Our position on the continued inclusion of Georgia in the
NOX SIP Call rule is not inconsistent with the Michigan
holding, inter alia, that ``[b]efore assessing `significance,' EPA must
find (1) emissions activity within a state; (2) show with modeling or
other evidence that such emissions are migrating into other states; and
(3) show that the emissions are contributing to nonattainment.''
Michigan, 213 F.3d at 680 (emphasis added). Further, we note that the
petitioners had maintained that there was record support for inclusion
of emissions from only the eastern half of Missouri and the northern
two thirds of Georgia as contributing to downwind ozone problems. We
also note the holding that ``the fine grid portion[] of [Georgia was]
closest to * * * [the Birmingham] nonattainment area[ ].''Michigan, 213
F.3d at 682. Thus, this action reflects our belief that with the
redesignation of the Birmingham, Alabama nonattainment area, we can no
longer conclude that emissions activities in Georgia are ``contributing
to [the Birmingham] nonattainment [area].''
    We do agree, however, that Michigan did not question either the
``proposition that the fine grid portion of each State should be
considered to make a significant contribution downwind,'' or OTAG's
modeling analysis, but again we note the applicable holding that the
``critical issue is whether the targeted `source' or `emissions
activity' `contribute[s] significantly to nonattainment' in another
state.'' Michigan, 213 F.3d at 682 (alteration in original). Again, we
believe that the redesignation of Birmingham, Alabama and Memphis,
Tennessee raises the question as to ``whether the targeted `source' or
`emissions activity' `contribute[s] significantly to nonattainment' in
another state,'' at the time of the Phase II NOX SIP Call
rule. And we believe we no longer have record support showing that
Georgia `contribute[s] significantly to nonattainment' in another
state'' that would warrant our continued inclusion of Georgia in the
NOX SIP Call rule.
    We also note that the issue at hand in this rulemaking was not
presented in Michigan and thus, was not decided in Michigan. That is,
the Court did not rule on whether EPA could continue to subject a State
to the NOX SIP Call requirements if, at the time of the
rulemaking for inclusion of that State, emissions activity from sources
in that State were no longer significantly contributing to
nonattainment in downwind areas. And even if we concede and agree with
both comments that Michigan does not require us to revisit the
inclusion of the ``fine grid portion'' in the NOX SIP Call
rule, and that GCSEP's petition raises issues beyond the scope of the
Phase II NOX SIP Call rulemaking, we believe we must be
cognizant of the fact that Memphis, Tennessee and Birmingham, Alabama
are no longer downwind nonattainment receptors as contemplated by the
NOX SIP Call rule, and take action accordingly. EPA must
have a rational basis for including any area within the scope of the
NOX SIP Call and EPA concludes that it would not be rational
to apply the SIP Call to an area that does not contribute to any
downwind receptor.
    We also disagree with the comment that petitioners did not meet the
grounds for reconsideration as provided in CAA section 307(d)(7)(B).
Much confusion exists as to whether this rulemaking is under CAA
section 307(d)(7)(B). Although GCSEP invoked CAA section 307(d)(7)(B)
as authority for its Petition, earlier we had informed them, by letter
dated October 22, 2004, that our response would be under the authority
of the Administrative Proceedings Act (APA), because CAA section
307(d)(7)(B) was clearly inapplicable. (A copy of this letter is in the
docket for this rulemaking.) Thus, this rulemaking is being taken under
Section 553(e) of the APA, which ``give[s] an interested person the
right to petition for the * * * amendment, or repeal of a rule.'' 5
U.S.C. Sec.  553(e). See also our earlier response to a comment
regarding our authority to stay the effectiveness of the NOX
SIP Call with respect to Georgia pending a final reconsideration
rulemaking. 70 FR 51592-93 (August 31, 2005).
    Comment: One commenter noted that subsequent to the Phase II
NOX SIP Call rule, EPA has revoked the one-hour ozone
standard and asserted that the NOX SIP Call requirements are
obsolete for Georgia as a result of the revocation. This commenter
believed that Georgia cannot significantly contribute to nonattainment,
nor interfere with maintenance, of a standard that no longer exists.
The commenter asserted that we cannot justify this rule because of our
authority to regulate activity that interferes with maintenance of the
one-hour standard.
    Response: As stated earlier, in this action, we are finalizing our
removal of Georgia from the NOX SIP Call rule in light of
our redesignation of downwind receptors that emissions activities in
Georgia were determined to be significantly contributing to. We note,
however, that the NOX SIP Call rule continues to apply in
other areas subsequent to the revocation of the 1-hour ozone standard
for purposes of anti-backsliding during transition to implementation of
the 8-hour standard, 40 CFR 51.905(f) (2005), and is therefore not
``obsolete.'' Further, with regard to our authority to regulate
emissions activity that interferes with the 1-hour ozone standard
maintenance, under section 110(a)(2)(D)(i)(I), we had also determined,
in the 1998 NOX SIP Call rule, that this requirement was
inapplicable to the extent the 1-hour standard would no longer apply to
an area subsequent to our attainment determination. ``Under these
circumstances, emissions from an upwind area cannot interfere with
maintenance of the 1-hour NAAQS.'' 63 FR 57379.
    Comment: One commenter, citing EPA's response to comments on the
continued inclusion of Missouri in the Phase II NOX SIP Call
rulemaking, argued that EPA has always taken a ``once-in-always-in''
approach to the NOX SIP Call. The commenter asserted that
the proposed rule is contrary to EPA's previous ``once-in-always-in''
approach. The commenter noted that the facts giving rise to GCSEP's
petition occurred only at the end of a lengthy, delayed rulemaking for
the Phase II NOX SIP Call rule. This commenter also believed
that the proposed rule, which took into account updated information,
was inconsistent with our previous statements relating to the continued
inclusion of Missouri in the NOX SIP Call rule. The
commenter also cited our specific response to comments on this issue
that,

    (1) ``We disagree that a new emissions inventory is necessary
that takes into account Missouri's statewide NOX rule and
other post-1998 CAA rules. Because SIPs are constantly changing, it
is impractical to revise emissions inventories and modeling analyses
each time changes are made,'' and (2) ``* * * completing the
NOX SIP Call rule in Missouri is an equitable approach.
It

would be inequitable to use 2003 air quality analysis for Missouri
but to hold other NOX SIP Call States to the 1998
analysis.'' (69 FR 21626).

    The commenter also noted our statement at the time that ``an agency
should not revisit an otherwise sound rulemaking just due to the
passage of time leading to changed circumstances, because circumstances
always change.'' Response to Comments: Phase II NOX SIP Call
Rule p. 47.
    One commenter disagreed with another commenter's assertion that the
proposed rule violated the ``once-in-always-in'' approach, because (1)
the NOX SIP Call rule had yet to be implemented in Georgia
and (2) that NOX emissions reductions have already been made
by the State of Georgia under other State regulatory authorities.
    Response: EPA does not agree that this rule is inconsistent with an
``once-in-always-in'' approach. The issue at hand is not whether
Georgia (or parts of Georgia) should continue to be ``in,'' but whether
as an initial matter Georgia (or parts of Georgia) should be ``in'' the
Phase II NOX SIP Call rule at all. As earlier explained,
States are subject to the NOX SIP Call requirements if they
meet the 1998 NOX SIP Call rule test for significant
contribution to ``nonattainment'' receptors. (63 FR 57373; 57375-85).
States that meet this test continue to be subject to the NOX
SIP Call requirements even with the revocation of the 1-hour ozone
standard. 40 CFR 51.905(f) (2005). Because both Birmingham, Alabama and
Memphis, Tennessee were meeting the 1-hour ozone standard and had been
redesignated as attainment areas at the time of the Phase II
NOX SIP Call Rule, we no longer believe that the fine grid
portion of Georgia met the test for significant contribution to
``nonattainment'' receptors at the time of promulgation of the Phase II
rule.
    We are also not persuaded by commenter's citation of our responses
to comments in the Phase II NOX SIP Call rule regarding our
rejection of 2003 air quality data that would take into account current
(at the time) emissions reductions by Missouri and our continued
reliance on emissions data from the NOX SIP Call in
subjecting Missouri to the NOX SIP Call requirements. (See
69 FR 21262). We do not believe that our response on this issue is
analogous primarily because the Chicago, Illinois nonattainment area
that eastern Missouri was significantly contributing to was still in
nonattainment at the time of promulgation of the Phase II
NOX SIP Call rule. Thus, eastern Missouri continued to meet
the 1998 NOX SIP Call rule test for significant contribution
to downwind ``nonattainment.'' Again this would not be the case with
respect to Georgia in this instance because both Birmingham, Alabama
and Memphis, Tennessee had been designated as attaining the 1-hour
ozone standard prior to promulgation of the Phase II rule.
    Further we disagree with the assertion that this rulemaking amounts
to revisiting the question of whether sources in northern Georgia are
linked to downwind nonattainment contrary to our stated position that
``we should not revisit an otherwise sound rulemaking just due to the
passage of time.'' Rather as earlier stated we believe that their clean
air quality and our redesignation of Birmingham, Alabama, and Memphis,
Tennessee nonattainment calls into question the validity of our
existing determination that Georgia ``significantly contributes to
downwind nonattainment'' as construed in the NOX SIP Call
Rule. 63 FR 57376. Our decision also comports with our earlier
statement that we intended to review the NOX SIP Call rule
to make necessary adjustments. 63 FR 57428. Further, as earlier stated,
even if we concede and agree with both comments that Michigan does not
require us to revisit the inclusion of Georgia's fine-grid portion and
that GCSEP's petition raises issues beyond the scope of the Phase II
NOX SIP Call rulemaking, we believe we must be cognizant of
the fact that Memphis, Tennessee and Birmingham, Alabama were no longer
downwind nonattainment receptors as contemplated by the NOX
SIP Call at the time of the Phase II Rule. Both areas achieved the 1-
hour ozone standard without the implementation of the NOX
SIP Call Rule in Georgia and thus, we see no reason for Georgia's
continued inclusion in the NOX SIP Call. Rather, we believe
that our continued subjection of the State of Georgia to the
NOX SIP Call requirements could likely be viewed as
arbitrary and capricious and not in accordance with the law in light of
the facts pertinent to the two downwind receptors at the time of
promulgation of the Phase II NOX SIP Call rule.
    Comment: One commenter asserted that our proposal was an attempt at
resurrecting the pre-1990 version of CAA Section 110(a)(2)(D)(i). The
commenter noted that prior to the 1990 amendments, this section
required the elimination of emissions that ``prevent attainment or
maintenance'' of the NAAQS by another State, while under the 1990
amendments this section now prohibits emissions that ``contribute
significantly to nonattainment'' in another State. The commenter
asserted that under the proposed rule, EPA seems to be applying the
pre-1990 provision by concluding that if the downwind State had
attained, without the assistance of one particular group of upwind
sources, then those sources must not be part of the problem.
    Response: We disagree. Under CAA Section 110(a)(2)(D)(i)(I), SIPs
must contain provisions prohibiting amounts of emissions ``which will
contribute significantly to nonattainment'' of an air quality standard
in a downwind state. In the NOX SIP Call Rule we interpreted
the term ``contribute significantly'' by explaining that:

    The determination of significant contribution includes both air
quality factors relating to amounts of upwind emissions and their
ambient impact downwind, as well as cost factors relating to the
costs of the upwind emissions reductions. Once an amount of
emissions is identified in an upwind State that contributes
significantly to a nonattainment problem downwind * * * the SIP must
include provisions to eliminate that amount of emissions. 63 FR
57376 (October 27, 1998).

    We also set out the multi-factor test we applied in determining
whether emissions from an upwind state ``contribute[s] significantly''
to downwind nonattainment. These factors included:

    [T]he overall nature of the ozone problem (i.e., collective
contribution'); The extent of the downwind nonattainment problems to
which the upwind State's emissions are linked, including the ambient
impact of controls required under the CAA or otherwise implemented
in the downwind areas; [and] [t]he ambient impact of the emissions
from the upwind State's sources on the downwind nonattainment
problems. Id.

    In the June 8, 2007, proposal, we explained that our inclusion of
Georgia in the NOX SIP Call was based on a finding that emissions from
northern Georgia contributed significantly to nonattainment of the one-
hour ozone standard by both Memphis, Tennessee and Birmingham, Alabama.
72 FR 31774. We also explained that both Memphis, Tennessee and
Birmingham, Alabama were designated as attainment areas at the time of
the Phase II NOX SIP Call Rule. 72 FR 31774. Consequently, today's
rulemaking reflects our belief that emissions activities in Georgia no
longer meet both our determination of ``significant contribution'' and
the multi-factor test, which we made at promulgation of the
NOX SIP Call Rule under the current section
110(a)(2)(D)(i)(I), and thus, that emissions from northern Georgia can
no longer be identified as ``contributing

significantly'' to downwind nonattainment problems. Thus, Georgia would
not need NOX SIP Call provisions to prevent any such contribution.

B. Emissions Cap Comment

    One commenter believed that our non-inclusion of Georgia in the NOX
SIP Call Rule would result in EGUs located in Georgia not being subject
to an emissions cap during ozone seasons, and that the lack of a cap
for sources that would otherwise be subject to the NOX SIP Call rule
may impede the ability of downwind states to maintain attainment of the
1-hour ozone NAAQS. Another commenter noted that EGUs are subject to
annual caps under the Clean Air Interstate rule (CAIR), and that
Georgia rules require that any add-on controls for CAIR compliance
purposes should be operational during the ozone season.
    Response: This action is based on the fact that the attainment of
the 1-hour ozone standard and redesignation of Birmingham, Alabama and
Memphis, Tennessee raises the question as to ``whether the targeted
`source' or `emissions activity' `contribute[s] significantly to
nonattainment' in another state.'' It is also based on our conclusion
that emitting activities in Georgia no longer `` `contribute[s]
significantly to nonattainment' in another state.'' Although not a
basis for our action, EPA notes, after reviewing the current Georgia
regulations, that by adopting stringent requirements for EGU NOX
emissions in the SIP Georgia has effectively capped EGUs emissions at
levels that are more stringent than would be achieved by implementing
the NOX SIP Call requirements.
    With regard to the comment that the absence of a cap for sources in
Georgia may impede the ability of downwind maintenance of the 1-hour
ozone standard, see our earlier response, in Section III.A above, on
our authority to regulate emissions activity that interfere with the
maintenance of the 1-hour ozone standard.

C. Comparison With the Atlanta State Implementation Plan

    We also received comments on our analysis and conclusion at
proposal that NOX emissions controls under current and anticipated
Atlanta SIP requirements would ensure equivalent or better levels of
NOX emissions than would be achieved under the NOX SIP Call. 72 FR
31775-76. Comments addressed the degree of reductions from the Atlanta
SIP in comparison to the emissions reductions assumed in the NOX SIP
Call budgets for: EGUs, non-EGU boilers, cement kilns and IC engines,
as well as emissions from other categories not included within the NOX
SIP Call.
    Comment: One commenter believed that EGUs requirements in the
Atlanta SIP were less stringent than the levels assumed in the NOX SIP
Call budgets. This commenter noted that the NOX SIP Call Rule was based
on an average level of 0.15 pounds NOX per million BTU for EGUs, while
the 1999 Atlanta SIP was based on a level of an average of 0.20 pounds
NOX per million BTU. Moreover, the commenter noted that our
calculations did not take into consideration Georgia's 60 counties that
would have been subject to the Phase II NOX SIP Call rule that are not
all addressed by the Atlanta SIP.
    Other commenters believed that the emissions reductions for EGUs
that would be achieved by the 1999 and subsequent Atlanta SIP
requirements exceeded the requirements of the NOX SIP Call rule. One
commenter noted that emissions by 27 of the 28 EGUs that would be
covered by the NOX SIP Call rule are limited by the 1999 Atlanta SIP
requirements, and that only 4 percent of the total EGUs NOX emissions
for the 2006 ozone season are emitted by the sole EGU that is not
covered by those requirements. The commenter did agree that the 27
units covered under the 1999 Atlanta SIP were subject to an overall
average limit of 0.20 pounds per million BTU. The commenter further
stated that 19 of the 27 EGUs were required to meet 0.13 pounds per
million BTU during the ozone season beginning May 1, 2003, or one year
earlier than the NOX SIP Call requirements, which were effective with
the 2004 ozone season.
    Several commenters noted that, based on a review of our
calculations, the overall actual NOX emissions for the 2003-2006 time
period, and taking into account early reduction allowances that EGUs
subject to 0.13 pounds per million BTU limits would have earned,
Georgia would not only have complied with the NOX SIP Call for this
time period, but could have maintained 4027 tons of banked excess
allowances as of the end of the 2006 ozone season. This estimate was
based on (1) calculations by Georgia, under the NOX SIP Call trading
program at 40 CFR part 96, showing that EGUs allocations would have
been 29,416 tons per year in addition to the compliance supplement pool
(CSP) allowance of 10,728 tons in 2004, or in sum, 98,976 tons from
2004 through 2006 ozone seasons; (2) actual EGUs NOX emissions of
24,966, 35,272, and 34,711 tons, respectively, for the 2004 through
2006 ozone seasons. (The commenter attributed these numbers to the
Agency's Clean Air Market Division's Web site.) This would result in a
total of 94,949 tons for the 2004-2006 ozone seasons; and (3) a
comparison of the NOX SIP Call allocations of 98,976 tons with the
94,949 tons of actual emissions to determine that actual emissions were
4,027 tons less than would have been allocated under the NOX SIP Call
trading program. The commenters noted that, were Georgia in the NOX SIP
Call rule, Georgia could have sold these allowances, and that this
would have likely resulted in NOX emissions increases from sources in
other States.
    One commenter also noted that the Atlanta SIP requires both limits
that are to be met on a 30 day rolling average, which is more
restrictive than the seasonal budgets identified in the NOX SIP Call
trading program, and a stringent cap on EGUs emissions because the
limits cannot be complied with by purchasing allowances.
    Response: As earlier stated, in the June 8, 2007, proposal we
explained that our inclusion of the State of Georgia in the NOX SIP
Call was based on our definition of ``nonattainment'' and determination
of ``significant contribution to downwind nonattainment'' as
articulated in the 1998 NOX SIP Call rule. 72 FR 31773. Based on this
definition and determination we found that emissions activities from
northern Georgia contributed significantly to nonattainment of the one-
hour ozone standard in both Memphis, Tennessee and Birmingham, Alabama.
72 FR 31774. We also explained that both Memphis, Tennessee and
Birmingham, Alabama were designated as attainment areas at the time of
the Phase II NOX SIP Call Rule. 72 FR 31774. Consequently, this
rulemaking reflects our belief that emissions activities in Georgia did
not meet the 1998 NOX SIP Call rule definition and determination at the
time of the Phase II NOX SIP Call Rule and thus, that emissions from
northern Georgia can no longer be identified as ``contributing
significantly'' to downwind nonattainment problems.
    Nonetheless, we note that the compliance date for Phase II NOX SIP
Call Rule was May 31, 2007, instead of May 31, 2004, assumed by the
above calculations. We also note that these calculations strongly
support our conclusion that existing requirements under the Atlanta SIP
result in NOX emissions reductions which are more stringent than the
NOX SIP call.
    Comment: One commenter believed that the appropriate basis for
comparison between the Atlanta SIP and the NOX SIP Call budgets should
not be 2004, but rather 2007 and

subsequent years. Because the NOX SIP Call is based upon achieving the
2007 NOX SIP Call budget, the better analysis would be to assess
whether sources in northern Georgia are modeled to achieve the 2007 NOX
SIP Call budget. The commenter stated that we had not made this
showing. The commenter also stated that our documentation in the
proposal did not clearly address future reductions from EGUs and other
sources. (72 FR 31776). The commenter asserted that our predicted EGUs
reductions based upon the Integrated Planning Model (IPM) are also
indeterminate.
    Other commenters supported EPA's view that existing and future
Atlanta SIP requirements would result in a future trend towards
decreasing EGU NOX emissions. One commenter noted that in February 2007
(effective May 1, 2007), EGUs requirements, under the Atlanta SIP,
became more stringent because the applicable average limits changed
from 0.20 to 0.18 lbs/MMBTU. Additionally, the Georgia
``multipollutant'' rule would require the installation of 12 additional
selective catalytic reduction (SCR) units between 2008 and 2015. The
commenter also noted that Georgia Power has submitted an application to
retire two coal-fired units in the Atlanta area and replace them with
lower-emitting natural gas combined-cycle units.
    Response: As explained earlier, we are determining that Georgia no
longer meets the ``significant contribution'' test articulated in the
1998 NOX SIP Call rule because both Memphis and Birmingham were in
attainment at the time of the Phase II NOX SIP Call rule. Nevertheless,
after reviewing the available information, EPA finds ample evidence to
note that beginning with the 2007 ozone season, NOX emissions in
northern Georgia will be less than assumed by the NOX SIP Call budgets.
Because, as noted in comments, Georgia NOX requirements for the SIP are
becoming more stringent over time, emissions for 2007 and subsequent
years would likely result in even more favorable comparisons for the
Georgia SIP requirements relative to the NOX SIP Call rule. This
assessment is not based on what the commenter terms as
``indeterminate'' predictions of the IPM model, but rather on the
enforceable requirements of the Atlanta SIP.
    Comment: Two commenters also noted that, under the Atlanta SIP, NOX
emissions reductions for IC engines and cement kilns are significantly
beyond the NOX SIP Call rule reductions. The commenters stated that
these additional reductions were achieved as a result of the Georgia
RACT rules for fuel burning equipment, stationary turbines, stationary
engines, large gas turbines, and small fuel burning equipment. One
commenter noted that non-EGUs boilers (i.e., greater than 250 Million
BTU/hour) might have become small-scale net purchasers of allowances
under the Phase II NOX SIP Call rule due to the absence of controls at
the levels assumed in setting the NOX SIP Call budgets. Nonetheless,
the commenter believed that the additional reductions from other
sources would more than offset those purchases, and would not affect
the finding that Georgia would have been a net exporter of NOX
emissions allowances under the Phase II NOX SIP Call rule.
    One commenter expressed concerns that reductions from other (non-
EGUs) sources were not well documented in the proposal, and that they
may be at least already partially included in the calculations for the
comparison of reductions between the Atlanta SIP and Phase II NOX SIP
Call rule.
    Response: As explained earlier, we are determining that Georgia no
longer meets the ``significant contribution'' test articulated in the
1998 NOX SIP Call Rule because both Memphis and Birmingham
attained the 1-hour ozone standard and were redesignated at the time we
promulgated the Phase II NOX SIP Call rule. Nonetheless, EPA
notes that documentation provided by commenters for the non-EGUs
measures in the Georgia SIP would appear to support the assertion that
Georgia would have been a likely net exporter of allowances under the
NOX SIP call rule.

D. Other Issues

    Comment: One commenter opposed EPA's proposed rule, and recommended
that not only should Georgia be included in the NOX SIP Call
rule, but should also be responsible for NOX emissions
reductions under the rule. The commenter noted that NOX
emissions are contributors to smog, and that Atlanta suffers from urban
sprawl with no incentive to keep growth within city limits.
    Response: EPA agrees with the commenter that NOX is an
important contributor to air pollution in Georgia, and that Georgia may
need further NOX reductions in order to meet applicable
ozone standards. This rule, however, reflects a determination that at
the time of promulgation of the Phase II NOX SIP Call rule,
emissions activities from sources in Georgia were no longer
significantly contributing to downwind nonattainment in other States.
Thus, it is not appropriate for EPA to impose NOX reductions
requirements in Georgia under the SIP Call.
    Comment: One commenter believed that the proposed action encourages
parties to hinder rulemakings in hopes that new circumstances will
provide a technical basis for a reprieve.
    Response: EPA disagrees. We believe we are acting appropriately
based on the facts at the time of the Phase II NOX SIP Call
rulemaking. Moreover, any delay in finalizing the Phase II
NOX SIP Call Rule did not contribute to adverse air quality
in Birmingham and Memphis because these areas were able to attain the
1-hour standard in the intervening period. EPA also notes that during
this intervening period, the Agency had to juggle competing rulemaking
demands on our limited scientific and legal staff.
    Comment: Two commenters expressed the concern that including
Georgia in the NOX SIP call would impose resource
expenditures without significant NOX emissions reductions.
One commenter cited concerns over resource expenditures for (1) non-
EGUs compliance with 40 CFR part 75 monitoring, (2) EGUs recordkeeping
in addition to acid rain and CAIR, (3) Georgia SIP obligations, and (4)
EPA tracking of ozone season allocations. The other commenter expressed
concerns that imposition of the NOX SIP Call would require
Georgia to conduct a lengthy and expensive rulemaking process and would
divert limited state resources from other efforts such as eight-hour
ozone SIPs, PM2.5 SIPs, and regional haze SIPs.
    Response: EPA generally agrees that these resource considerations
support the proposed rule.
    Comment: One commenter noted that numerous modeling studies have
assumed full implementation of the NOX SIP Call in all
affected States including Georgia. Thus, the commenter argues, if
Georgia does not implement the SIP Call, all of these modeling analyses
would be incorrect.
    Response: The commenter appears to assume, without providing any
support, that not including Georgia in the NOX SIP Call Rule
would result in future emissions being greater than those used as
inputs to previous modeling studies, and that those increased emissions
would lead to increases in modeled estimates of ozone concentrations.
This assumption is incorrect. As noted in the preamble to the proposed
rule (72 FR 31775-31776) and as discussed above, EPA has determined
that future NOX emissions from Georgia, because of Atlanta
SIP requirements, would most likely be less than the emissions that
were projected to occur from implementation of the NOX SIP
Call rule by Georgia. In other words, the emission levels required by
the Georgia SIP are

lower than those that would have occurred from implementation of the
NOX SIP Call in Georgia. Thus, any assumption regarding
Georgia's participation in the NOX SIP Call would likely not
have affected estimates of Georgia emissions in various modeling
analyses. For these reasons, we can conclude that the removal of
Georgia from the NOX SIP Call would not be expected to
impact modeling inputs or results of the modeling studies.
    Comment: One commenter noted that the commenter's problem with
EPA's proposed rule was compounded by exclusion of Georgia from the
seasonal CAIR program. The commenter further stated that Georgia is the
only state out of 22 states east of the Mississippi subject to CAIR
that is not otherwise subject to the CAIR summertime NOX
program.
    Response: We disagree. Georgia is subject to both annual emissions
budgets for NOX under CAIR, and stringent requirements under
the 1999 and subsequent Atlanta SIP requirements. In addition, as noted
by commenters, Georgia SIP rules require that controls installed for
purposes of meeting annual CAIR requirements must be operated during
the ozone season. In sum, we believe that all these requirements will
assure substantial reductions in summertime NOX emissions in
Georgia. See also 72 FR 31775-56.
    Comment: One commenter noted that EPA did find in its original
analysis for the NOX SIP Call rule that the NOX
emissions in Georgia significantly contributed to 8-hour ozone
nonattainment areas in 10 downwind States, including Alabama. The
commenter was also cognizant of the stay of the findings of the
NOX SIP Call rule as it relates to the 8-hour ozone
standard. Thus this commenter recommended that Georgia should not be
removed from the Phase II NOX SIP Call rule.
    Another commenter expressed concerns that Georgia sources do not
have summertime NOX emissions caps despite significant
contributions to 8-hour ozone levels.
    Response: This comment and any other comments on the 8-hour basis
of the NOX SIP Call rule are beyond the scope of the
proposed rule. The stay of effectiveness of the 8-hour basis for the
NOX SIP Call continues, and the proposed rule neither
addressed nor reopened any issues relating to the 8-hour basis for the
NOX SIP Call rule. 72 FR 31774.
    EPA notes, however, that as stated above, Georgia is subject to
annual emissions budgets for NOX under CAIR, that controls
installed for purposes of meeting annual CAIR requirements must be
operated during the ozone season in Georgia, and that the Georgia SIP
requirements designed to achieve emission reductions aimed at
addressing 8-hour ozone nonattainment in Atlanta will assure that
stringent levels of NOX emissions will be met. As noted
earlier above, these levels are more stringent than required by the
NOX SIP Call budgets.
    Comment: One commenter noted that certain controls in Georgia were
installed a year earlier than similar requirements in North Carolina,
and the average pounds/million BTU emissions rate is lower in Georgia
than in North Carolina or Alabama.
    Response: This comment is beyond the scope of the proposed rule.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action 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 action grants a
petition for reconsideration and removes the State of Georgia from the
NOX SIP Call Rule. It does not impose any requirement on
regulated entities.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because the action removes a regulatory requirement.
    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 (RFA)

    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
Procedures 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 final rule on small
entities, small entity is defined as: (1) A small business as defined
in the Small Business Administration's (SBA) regulations at 13 CFR
12.201; (2) a small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of this final 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 U.S.C. 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 action grants a petition for reconsideration and removes the
State of Georgia from the NOX SIP Call Rule and therefore,
is not expected to have a significant economic impact on a substantial
number of small entities. This action neither imposes requirements on
small entities, nor is it expected that there will be impacts on small
entities beyond those, if any, required by or resulting from the
NOX SIP Call and the Section 126 Rules.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under Section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for any proposed or final rules with ``Federal mandates''
that may result in the expenditure to State, local, and Tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year. Before promulgating a rule for which a
written statement is needed, Section 205 of the UMRA generally requires
EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of Section 205 do not apply when they are inconsistent with
applicable law. Moreover, Section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including Tribal governments, it
must have developed under Section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
    This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or Tribal
governments or the private sector. The EPA prepared a statement for the
final NOX SIP Call that would be required by UMRA if its
statutory provisions applied. This action does not create any
additional requirements beyond those of the final NOX SIP
Call, and will actually reduce the requirements by excluding the State
of Georgia, and therefore no further UMRA analysis is needed.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This 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 action does not impose an
enforceable duty on these entities. This action imposes no additional
burdens beyond those imposed by the final NOX SIP Call.
Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This rule does not have
Tribal implications, as specified in Executive Order 13175.
    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 action does not significantly or uniquely affect the
communities of Indian Tribal governments. The EPA stated in the final
NOX SIP Call Rule that Executive Order 13084 did not apply
because that final rule does not significantly or uniquely affect the
communities of Indian Tribal governments or call on States to regulate
NOX sources located on Tribal lands. The same is true of
this action. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to the Executive Order because it is not
economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. This action does not impose
requirements beyond those, if any, required by or resulting from the
NOX SIP Call and Section 126 Rules.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This 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. Further, we have
concluded that this rule is not likely to have any adverse energy
effects.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides

not to use available and applicable voluntary consensus standards. This
rulemaking does not involve technical standards, therefore, EPA is not
considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this 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. For the final
NOX SIP Call rule, the Agency conducted a general analysis
of the potential changes in ozone and particulate matter levels that
may be experienced by minority and low-income populations as a result
of the requirements of that rule. These findings were presented in the
RIA for the NOX SIP Call. This action does not affect this
analysis.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective May 22, 2008.

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the District of Columbia Circuit by June 23, 2008. Filing a petition
for reconsideration by the Administrator of this final rule does not
affect the finality of this rule for the purposes of judicial review
nor does it extend the time within which a petition for judicial review
must be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See CAA Section 307(b)(2).

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Ozone, Reporting
and recordkeeping requirements.

    Dated: April 16, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set forth in the preamble, part 51 of chapter I of
title 40 of the Code of Federal Regulations is amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION AND SUBMITTAL OF
IMPLEMENTATION PLANS

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart G--Control Strategy

0
2. Section 51.121 is amended as follows:
0
a. By revising paragraph (c)(2).
0
b. By removing the entry for ``Georgia'' from the tables in paragraphs
(e)(2)(i), (e)(4)(iii) and (g)(2)(ii).
0
c. By removing and reserving paragraph (e)(2)(ii)(C).
0
d. By removing paragraph (s).

Sec.  51.121  Findings and requirements for submission of State
implementation plan revisions relating to emissions of oxides of
nitrogen.

* * * * *
    (c) * * *
    (2) With respect to the 1-hour ozone NAAQS, the portions of
Missouri, Michigan, and Alabama within the fine grid of the OTAG
modeling domain. The fine grid is the area encompassed by a box with
the following geographic coordinates: Southwest Corner, 92 degrees West
longitude and 32 degrees North latitude; and Northeast Corner, 69.5
degrees West longitude and 44 degrees North latitude.
* * * * *

[FR Doc. E8-8673 Filed 4-21-08; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 79, Number 236 (Tuesday, December 9, 2014)]
[Notices]
[Page 73079]
[FR Doc No: 2014-28714]

-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2014-N-0987]

Agency Information Collection Activities; Proposed Collection;
Comment Request; Generic Clearance for the Collection of Qualitative
Data on Tobacco Products and Communications; Correction

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice; correction.

-----------------------------------------------------------------------

SUMMARY: The Food and Drug Administration (FDA) is correcting a
document entitled ``Agency Information Collection Activities; Proposed
Collection; Comment Request; Generic Clearance for the Collection of
Qualitative Data on Tobacco Products and Communications'' that appeared
in the Federal Register of August 1, 2014. The document announced the
generic clearance for the collection of qualitative data on tobacco
products and communications. The document was published with the
incorrect docket number. This document corrects that error.

FOR FURTHER INFORMATION CONTACT: FDA PRA Staff, Office of Operations,
Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver
Spring, MD 20993-0002<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: In FR Doc. 2014-18195, appearing on page
44779 in the Federal Register of August 1, 2014 (79 FR 44779), FDA is
making the following correction:
    1. On page 44779, in the second column, in the Docket No. heading,
``FDA-2014-N-0005'' is corrected to read ``FDA-2014-N-0987.''

    Dated: December 3, 2014.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2014-28714 Filed 12-8-14; 8:45 am]
BILLING CODE 4164-01-P


response plan requirements, the vessel owner or operator, as
applicable under the regulations prescribed in this part, must
ensure that a portion of those resources are capable of being used
in close-to-shore response activities in shallow water. The
following percentages of the on-water response equipment identified
for the applicable geographic area must be capable of operating in
waters of 6 feet or less depth:
    (i) Open ocean--none.
    (ii) Offshore--10 percent.
    (iii) Nearshore, inland, Great Lakes, and rivers and canals--20
percent.
    5.6 In addition to oil spill recovery devices and temporary
storage capacity, a vessel owner or operator, as applicable under
the regulations prescribed in this part, must identify in the
response plan and ensure the availability of, through contract or
other approved means, sufficient boom that can arrive on scene
within the required response times for oil containment and
collection. The specific quantity of boom required for collection
and containment will depend on the specific recovery equipment and
strategies employed. Table 2 of this appendix lists the minimum
quantities of additional boom required for shoreline protection that
a vessel owner or operator must identify in the response plan and
ensure the availability of, through contract or other approved
means.
    5.7 A vessel owner or operator, as applicable under the
regulations prescribed in this part, must also identify in the
response plan and ensure, by contract or other approved means, the
availability of an oil spill removal organization capable of
responding to a shoreline cleanup operation involving the calculated
volume of emulsified oil that might impact the affected shoreline.
The volume of oil for which a vessel owner or operator should plan
for should be calculated through the application of factors
contained in Tables 3 and 4 of this appendix. The volume calculated
from these

tables is intended to assist the vessel owner or operator in
identifying a contractor with sufficient resources. This planning
volume is not used explicitly to determine a required amount of
equipment and personnel.
* * * * *
    7.1 A vessel owner or operator, as applicable under the
regulations prescribed in this part, must plan for a response to a
vessel's worst case discharge oil planning volume. The planning for
on-water recovery must take into account a loss of some oil to the
environment due to evaporation and natural dissipation, potential
increases in volume due to emulsification, and the potential for
deposit of some oil on the shoreline.
    7.2 The following procedures must be used to calculate the
planning volume used by a vessel owner or operator, as applicable
under the regulations prescribed in this part, for determining
required on-water recovery capacity:
* * * * *
    7.2.3 The adjusted volume is multiplied by the on-water oil
recovery resource mobilization factor found in Table 5 of this
appendix from the appropriate operating area and response tier to
determine the total on-water oil recovery capacity in barrels per
day that must be identified or contracted for to arrive on scene
within the applicable time for each response tier. Table 5 specifies
three tiers. For higher volume port areas, the contracted tiers of
resources must be located such that they can arrive on scene within
12, 36, and 60 hours of the discovery of an oil discharge. For the
Great Lakes, these tiers are 18, 42, and 66 hours. For rivers and
canals, inland, nearshore, and offshore, these tiers are 24, 48, and
72 hours. For the open ocean area, these tiers are 24, 48, and 72
hours with an additional travel time allowance of 1 hour for every
additional 5 nautical miles from shore. For nontank vessels, only
Tier 1 is specified.
    7.2.4 The resulting on-water recovery capacity in barrels per
day for each tier is used to identify response resources necessary
to sustain operations in the applicable geographic area. The
equipment must be capable of sustaining operations for the time
period specified in Table 3 of this appendix. A vessel owner or
operator, as applicable under the regulations prescribed in this
part, must identify and ensure the availability of, through contract
or other approved means, sufficient oil spill recovery devices to
provide the effective daily oil recovery capacity required. If the
required capacity exceeds the applicable cap described in Table 6 of
this appendix, then a vessel owner or operator must contract only
for the quantity of resources required to meet the cap, but must
identify sources of additional resources as indicated in Sec.
155.1050(p). For a vessel that carries multiple groups of oil, the
required effective daily recovery capacity for each group is
calculated and summed before applying the cap.
* * * * *
    7.3.1 The following must be determined: The total volume of oil
carried; the appropriate group for the type of petroleum oil carried
[persistent (groups II, III, and IV) or non-persistent (group I)];
and the geographic area(s) in which the vessel operates. For a
vessel carrying different oil groups, each group must be calculated
separately. Using this information, Table 3 of this appendix must be
used to determine the percentages of the total oil volume to be used
for shoreline cleanup resource planning.
* * * * *
    8.1.1 A vessel owner or operator, as applicable under the
regulations prescribed in this part, must plan either for a
dispersant capacity to respond to a vessel's worst case discharge of
oil, or for the amount of the dispersant resource capability as
required by Sec.  155.1050(k)(3) of this subchapter, whichever is
the lesser amount. When planning for the cumulative application
capacity that is required, the calculations should account for the
loss of some oil to the environment due to natural dissipation
causes (primarily evaporation). The following procedure should be
used to determine the cumulative application requirements:
* * * * *

0
25. In appendix C to part 155, revise paragraphs <IP_ADDRESS>, 2.2.14,
2.2.15, <IP_ADDRESS>, <IP_ADDRESS>, <IP_ADDRESS>, <IP_ADDRESS>, and <IP_ADDRESS> to read as
follows:

Appendix C to Part 155--Training Elements for Oil Spill Response Plans

* * * * *
    <IP_ADDRESS> Operational activities associated with internal or
external fuel and cargo transfers;
* * * * *
    2.2.14 Actions to take, in accordance with designated job
responsibilities, in the event of a transfer system leak, tank
overflow, or suspected fuel or cargo tank or hull leak.
    2.2.15 Information on the oil handled by the vessel or facility,
including familiarity with--
    <IP_ADDRESS> Cargo material safety data sheets (including oil
carried as fuel);
    <IP_ADDRESS> Chemical characteristics of all oils carried as fuel or
cargo;
    <IP_ADDRESS> Special handling procedures for all oils carried as
fuel or cargo;
    <IP_ADDRESS> Health and safety hazards associated with all oils
carried as fuel or cargo; and
    <IP_ADDRESS> Spill and firefighting procedures for all oils carried
as fuel or cargo.
* * * * *

PART 160--PORTS AND WATERWAYS SAFETY-GENERAL

0
26. The authority citation for part 160 continues to read as follows:

    Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. Chapter 701;
Department of Homeland Security Delegation No. 0170.1. Subpart C is
also issued under the authority of 33 U.S.C. 1225 and 46 U.S.C.
3715.

Sec.  160.206  [Amended]

0
27. In Sec.  160.206, in Table 160.206--
0
a. In the Required information column, after item (1)(viii), add ``(ix)
USCG Vessel Response Plan Control Number, if applicable''; and
0
b. In each of remaining three columns of the newly added row (1)(ix),
add an ``X''.

    Dated: August 16, 2013.
Robert J. Papp, Jr.,
Admiral, U.S. Coast Guard Commandant.
[FR Doc. 2013-22059 Filed 9-27-13; 8:45 am]
BILLING CODE 9110-04-P


			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

			Issued by the Department of Transportation on June 3, 2004

NOTICE OF ACTION TAKEN -- DOCKET OST-2001-9738

________________________________________________________________________
________________________________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Applicant:  Vensecar International C.A.						Date Filed:  May 17, 2004

Relief requested:  Renew exemption from 49 U.S.C. 41301 to conduct
scheduled foreign air transportation of property and mail between a
point or points in Venezuela, on the one hand, and Miami, Florida, on
the other hand, and all-cargo charters pursuant to 14 CFR 212 of the
Department’s regulations.  Vensecar also seeks to amend its exemption
authority to the extent necessary to permit it to (1) serve the
Netherlands Antilles and Jamaica as authorized intermediate points on
its authorized all-cargo services between Venezuela and Miami; (2)
conduct scheduled foreign air transportation of property and mail
between a point or points in Venezuela, on the one hand, and Houston,
Texas, on the other hand, via the Netherlands Antilles and Jamaica; and
(3) conduct scheduled foreign air transportation of property and mail
from a point or points in Venezuela, on the one hand, and San Juan,
Puerto Rico, on the other hand, and beyond San Juan to Spain, France,
the Netherlands and Germany, and beyond to points outside Europe.
Vensecar proposes to conduct the proposed services using aircraft wet
leased from a duly authorized and properly supervised U.S. or foreign
air carrier.

If renewal, date and citation of last action:  Notice of Action Taken
dated October 8, 2003, in this docket

Applicant representative:  Bruce Rabinovitz<PHONE_NUMBER>		DOT analyst:
Shelita Smith<PHONE_NUMBER>

Responsive pleadings:  None filed

		DISPOSITION

Under its amended authority, Vensecar is authorized to engage in
scheduled foreign air transportation of property and mail between a
point or points in Venezuela, on the one hand, and Miami, Florida, and
Houston, Texas, on the other hand, via the Netherlands Antilles and
Jamaica; (2) conduct scheduled foreign air transportation of property
and mail from a point or points in Venezuela, on the one hand, and San
Juan, Puerto Rico, on the other hand, and beyond San Juan to Spain,
France, the Netherlands and Germany (and beyond to points outside
Europe); and (3) all-cargo charters pursuant to 14 CFR 212 of the
Department’s regulations.

Action:  Approved									Action date:  June 3, 2004

Effective dates of authority granted:  June 3, 2004 – June 3, 2005

Basis for approval (bilateral agreement/reciprocity):  U.S.-Venezuela
Air Transport Agreement

Except to the extent exempted/waived, this authority is subject to the
terms, conditions, and limitations indicated:

X  Standard exemption conditions (attached)

X  Special conditions:  The conditions contained in the Notice of Action
Taken dated September 18, 2002, in this docket.  Vensecar may not
conduct U.S. operations with its own aircraft and crews without further
order of the Department.

Action taken by:   Paul L. Gretch, Director

		      Office of International Aviation

________________________________________________________________________
___________________________________________________________

We found that the applicant was qualified to perform its proposed
operations.

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that  (1) our action was consistent with Department
policy; (2) grant of the authority was consistent with the public
interest; and (3) grant of the authority would not constitute a major
regulatory action under the Energy Policy and Conservation Act of 1975.
To the

2

extent not granted/deferred/dismissed, we denied all requests in the
referenced Docket.  We may amend, modify, or revoke the authority
granted in this Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR
§385.30, may file their petitions within seven (7) days after the date
of issuance of this Notice.  This action was effective when taken, and
the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide
Web at:

  HYPERLINK "http://dms.dot.gov//reports/reports_aviation.asp"
http://dms.dot.gov//reports/reports_aviation.asp

Foreign Carrier Exemption Conditions

In the conduct of the operations authorized, the foreign carrier
applicant(s) shall:

(1)  Not conduct any operations unless it holds a currently effective
authorization from its homeland for such operations, and it has filed a
copy of such authorization with the Department;

(2)  Comply with all applicable requirements of the Federal Aviation
Administration, including, but not limited to, 14 CFR Parts 129, 91, and
36, and with all applicable U.S. Government requirements concerning
security, including, but not limited to, 49 CFR Part 1546 or 1550, as
applicable.  To assure compliance with all applicable U.S. Government
requirements concerning security, the holder shall, before commencing
any new service (including charter flights) from a foreign airport that
would be the holder’s last point of departure for the United States,
contact its International Principal Security Inspector (IPSI) to advise
the IPSI of its plans and to find out whether the Transportation
Security Administration has determined that security is adequate to
allow such airport(s) to be served;

(3)  Comply with the requirements for minimum insurance coverage
contained in 14 CFR Part 205, and, prior to the commencement of any
operations under this authority, file evidence of such coverage, in the
form of a completed OST Form 6411, with the Federal Aviation
Administration’s Program Management Branch (AFS-260), Flight Standards
Service (any changes to, or termination of, insurance also shall be
filed with that office);

(4)  Not operate aircraft under this authority unless it complies with
operational safety requirements at least equivalent to Annex 6 of the
Chicago Convention;

(5)  Conform to the airworthiness and airman competency requirements of
its Government for international air services;

(6)  Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR Part 203,
concerning waiver of Warsaw Convention liability limits and defenses;

(7)  Agree that operations under this authority constitute a waiver of
sovereign immunity, for the purposes of 28 U.S.C. 1605(a), but only with
respect to those actions or proceedings instituted against it in any
court or other tribunal in the United States that are: (a)  based on its
operations in international air transportation that, according to the
contract of carriage, include a point in the United States as a point of
origin, point of destination, or agreed stopping place, or for which the
contract of carriage was purchased in the United States; or (b)  based
on a claim under any international agreement or treaty cognizable in any
court or other tribunal of the United States.  In this condition, the
term "international air transportation" means "international
transportation" as defined by the Warsaw Convention, except that all
States shall be considered to be High Contracting Parties for the
purpose of this definition;

(8)  Except as specifically authorized by the Department, originate or
terminate all flights to/from the United States in its homeland;

(9)  Comply with the requirements of 14 CFR Part 217, concerning the
reporting of scheduled, nonscheduled, and charter data;

(10) If charter operations are authorized, except as otherwise provided
in the applicable aviation agreement, comply with the Department's rules
governing charters (including 14 CFR Parts 212 and 380); and

(11) Comply with such other reasonable terms, conditions, and
limitations required by the public interest as may be prescribed by the
Department, with all applicable orders or regulations of other U.S.
agencies and courts, and with all applicable laws of the United States.

This authority shall not be effective during any period when the holder
is not in compliance with the conditions imposed above.  Moreover, this
authority cannot be sold or otherwise transferred without explicit
Department approval under Title 49 of the U.S. Code.

 We note that Vensecar sought authority for a two-year period.  However,
as is our usual practice in conferring authority in the circumstances
presented, we are limiting the term of authority to one year.  Vensecar
may, of course, seek renewal of this authority in accordance with the
Department’s regulations.

 Venezuela is currently a Category 2 country under the FAA’s
International Aviation Safety Assessment Program.

05/2004