Rules and Regulations. Final rule

Agency: Postal Rate Commission
Action: Final rule
Citation: FR Doc. 06-9227 · Docket No. RM2006-1; Order No. 1481 · 39 CFR 3001

Summary

The Commission is re-issuing five sets of rules related to certain types of Postal Service requests that are due to expire, given sunset provisions. Re-issuance entails eliminating sunset provisions in four sets. It also entails limited revisions, such as shortening and standardizing intervention periods, revising the numbering of one set, and minor editorial changes. Re-issuance allows the Postal Service to have continued flexibility, without interruption, and will enhance administrative efficiency.

Dates

These sets of rules are effective November 16, 2006.

Supplementary Information

Regulatory History 71 FR 55136 (September 21, 2006). 54 FR 11394 (March 20, 1989). 54 FR 33681 (August 16, 1989). 60 FR 54981 (October 27, 1995). 61 FR 24447 (May 15, 1996). 66 FR 54436 (October 29, 2001). In Order No. 1479, the Commission proposed to amend its Rules of Practice and Procedure, 39 CFR 3001.1 et seq. , with respect to five sets of rules that are subject to five-year sunset provisions, each of which is scheduled to expire November 28, 2006. 1 Generally, these rules provide for expedited consideration of various Postal Service requests for a recommended decision. The five sets of rules include: 2 1 PRC Order No. 1479, Docket No. RM2006-1, September 15, 2006. 2 The Rules of Practice and Procedure may be accessed on the Commission's Web site, www.prc.gov , by clicking first on “Contents” and then on “Commission Rules” which are found under the heading “Table of Contents.” (1) 39 CFR 3001.57-60, market response Express Mail rate requests; (2) 39 CFR 3001.69-69c, minor classification changes; (3) 39 CFR 3001.161-166, market tests of proposed classification changes; (4) 39 CFR 3001.171-176, provisional service changes of limited duration; and (5) 39 CFR 3001.181-182, multi-year test periods for proposed new services. Exclusive of minor, non-substantive editorial changes, the Commission proposed to amend its rules in two principal ways, while reserving judgment on the rules concerning market response Express Mail rates. First, it proposed to re-issue rules 69-69c, 161-166, 171-176, and 181-182, amended to eliminate the sunset provision. 3 Second, the Commission proposed to standardize and shorten the time period for interventions as of right in proceedings involving minor classification changes (rules 69-69c), market tests (rules 161-166), and provisional service changes (rules 171-176). The Commission did not propose to re-issue rules 57-60 (market response Express Mail rates), but rather sought comments on whether their re-issuance would be in the public interest. 3 Under the proposal, the rules for minor classification changes (§§ 3001.69-69c) are renumbered as § 3001.69(a)-(f) to conform to Office of the Federal Register style preference. Interested persons were invited to comment on the proposed rulemaking. The Postal Service and the Office of the Consumer Advocate (OCA) submitted initial comments; 4 the Postal Service also filed reply comments. 5 4 Initial Comments of the United States Postal Service in Response to Order No. 1479, October 13, 2006, (Postal Service Initial Comments); Office of the Consumer Advocate Comments in Response to Order No. 1479, October 13, 2006 (OCA Comments). 5 Reply Comments of the United States Postal Service, October 20, 2006 (Postal Service Reply Comments). I. Parties' Comments The sole controversy raised by the comments is whether rules 57-60 should be re-issued or allowed to lapse. The Postal Service argues for re-issuance, while the OCA advocates allowing these rules to lapse unless the Postal Service justifies their retention and indicates “a concrete intention to use them in the future[.]” 6 Otherwise, the commenters agree, for all intents and purposes, that the proposed amendments should be adopted. 7 6 OCA Comments at 1. 7 OCA does not take a position on the proposed shortening of the intervention period because it is not required to intervene in Commission proceeding, but rather is appointed pursuant to 39 U.S.C. 3624(a). Id. at 2. In Order No. 1479, the Commission discussed the substance and history of each of the rules. Among other things, it noted that the market response Express Mail rules, which were enacted in 1989, had never been invoked by the Postal Service. In light of this, the Commission questioned whether these rules had any continuing utility, suggesting that “[a]bsent an affirmative showing, there may be no compelling reason to reissue these rules.” 8 8 PRC Order No. 1479, supra , at 8. The Postal Service urges the Commission to re-issue rules 57-60 for an additional five years. 9 It contends that, notwithstanding their lack of use, these rules retain a continuing value providing a “defined procedural mechanism” to enable the Postal Service to respond to changes in the overnight delivery market more quickly than may otherwise be possible. Id. at 4. The Postal Service further asserts that re-issuing the rules would not impose a burden on the Commission or any interested party. Id. at 5. 9 Postal Service Initial Comments at 3. The OCA's opposition to rules 57-60 is conditional. 10 It would have them lapse unless the Postal Service justifies their retention and explicitly commits to employ them in the future. Absent that, OCA suggests that discontinuing the rules may serve “administrative efficiency.” Id. at 2. 10 OCA Comments at 1-2. In its reply, the Postal Service comments on the OCA's conditional opposition. It asserts that its initial comments provide explicit justification supporting retention of rules 57-60. 11 The Postal Service argues that OCA's second condition, that it commit to using the rules, is impractical because, by their nature, the rules are designed to permit the Postal Service to respond to market developments that it can neither predict nor control. Id. at 3. Finally, the Postal Service counters the OCA's suggestion that discontinuing the rules may serve administrative efficiency, arguing that retaining the rules provides definitive procedures governing limited Express Mail rate requests which are preferable to ad hoc determinations which would otherwise be required to achieve expedition. Id. at 4-5. 11 Postal Service Reply Comments at 2-3. II. Commission Analysis The proposal to re-issue the rules regarding minor classification changes (redesignated as rule 69(a)-(f), market tests (rules 161-166) provisional service changes (rules 171-176), and multi-year test periods (rules 181-182) on a permanent basis, i.e., by eliminating the sunset provisions, is unopposed. These provisions, which provide procedural options to facilitate expedited consideration of certain Postal Service requests, have proven to be useful. 12 Accordingly, the Commission adopts the proposal to re-issue these rules, amended to eliminate the sunset provisions. 12 See PRC Order No. 1479 at 3-6. Although the Postal Service has yet to invoke rules 181-182, the Commission finds that re-issuance, as amended, is appropriate. The rules, which simply prescribe the documentation necessary to support such a request, provide a framework for considering potential new services. Retention of these rules disadvantages no potentially interested person, while affording the Postal Service increased flexibility regarding new services. Likewise the Commission's proposal to standardize and shorten the intervention period as of right in proceedings involving minor classification changes, market tests, and provisional service changes is uncontroversial. Under the current rules, interventions are due 26 or 28 days after filing of the Postal Service's request. 13 These provisions predate the Commission's adoption of electronic filing requirements. As the Commission noted, the proposed change should present no hardship to any prospective intervenor given the ready online availability of the Postal Service's request, the Commission's order noticing the request, and the ease of intervening electronically. 14 The Postal Service supports this proposal. 15 No party contests it. Accordingly, the Commission adopts the proposal to standardize and shorten the intervention period in the relevant proceedings. 16 13 See current rules 69b(e), 163(b), and 173(b); see also proposed rules 69(e)(4), 163(e), and 173(e). 14 PRC Order No. 1479 at 8. 15 The Postal Service suggests that rules 163(d) and 173(d) be revised to make them consistent with revised rule 69b(d), redesignated as rule 69(e)(3), which eliminated the requirement that the Postal Service's notice accompanying its request for a minor classification change “identify the last day for filing a notice of intervention with the Commission.” Postal Service Initial Comments at 2-3. The Postal Service's suggestion is well-taken. The failure to revise rules 163(d) and 173(d) to reflect the proposal was an oversight. Under the proposal, the Commission's notice of proceeding will afford all interested persons a minimum of 15 days after the filing of the Postal Service's request within which to intervene. See attached rules 69(e)(4), 163(e), and 173(e). The current rules require the Postal Service's notice of its filing to identify the last day for filing a notice of intervention with the Commission. See current rules 69b(d), 163(d), and 173(d). This requirement is unnecessary under the proposal. Accordingly, the Postal Service suggestion will be adopted in the final rule. Conforming changes will not be made to rules 59(c)(1) and (c)(3) at this time because rules 57-60 are substantively different from the rules applicable to limited classification changes and would require revisions to other rules as well. 16 See attached rules 69(e)(4), 163(e), and 173(e). The Commission did not propose not to re-issue rules 57-60. Instead, it simply did not propose to re-issue those rules, urging any party favoring them to demonstrate that renewal is appropriate. The Postal Service has made an adequate showing to support re-issuing the rules for another five-year period. In addition, it satisfactorily addressed OCA's conditional opposition, demonstrating the problematic nature of requiring an explicit commitment to employ the rules. 17 17 To avoid the possibility that the current rules may lapse, the Commission finds it in the public interest to issue this order as a final rule to become effective upon publication in the Federal Register . This approach also provides the Postal Service with maximum operating flexibility under the circumstances. Two additional factors influence the Commission's decision to re-issue these rules for an additional five-year period. First, the rules provide procedures governing requests for an expedited recommended decision on limited Express Mail rate proposals. Interested persons may intervene in any such proceeding to protect their interests. As with all proceedings before the Commission, one initiated under these rules would be decided on the merits. Thus, no potentially interested person is prejudiced by renewal of the rules. 18 18 The Postal Service may be alluding to this point when it states that re-issuing these rules imposes no burden on interested stakeholders. Postal Service Reply Comments at 2-3; see also Postal Service Initial Comments at 5. A second consideration is the notable absence of any comments from private carriers opposing re-issuance. This void is not meant to suggest that such comments would have been dispositive. By the same token, the Commission is reluctant to read too much into the lack of opposition. Nonetheless, absent indications to the contrary, it would seem to imply that, at a minimum, the rules contain adequate safeguards to protect the interests of such prospective parties. Finally, as a cautionary observation, the Commission notes that, although it is, under the circumstances, re-issuing these rules for an additional five-year period, this result is not intended to preclude a finding, based on the record in a future proceeding, that these rules have become obsolete. In conclusion, pursuant to the foregoing discussion, the Commission hereby amends its Rules of Practice as set forth below. Ordering Paragraphs It is ordered: 1. The Commission's Rules of Practice are amended as set forth below the signature line of this order. 2. The attached rules are effective upon publication in the Federal Register . 3. The Secretary shall cause this order to be published in the Federal Register . By the Commission. Steven W. Williams, Secretary. List of Subjects in 39 CFR Part 3001 Administrative practice and procedure, Postal Service. For the reasons discussed above, the Commission amends 39 CFR part 3001 as follows: PART 3001—RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 3001 continues to read as follows: Authority: 39 U.S.C. 404(b); 3603; 3622-24; 3661, 3662, 3663. § 3001.57(b) [Amended] 2. Revise § 3001.57(b) to read as follows: Subpart B—Rules Applicable to Requests for Changes in Rates or Fees § 3001.57 Market response rate requests for express mail service—purpose and duration of rules. (b) This section and §§ 3001.58 through 3001.60 remain in effect until November 16, 2011. 3. Revise § 3001.69 to read as follows: Subpart C—Rules Applicable to Requests for Establishing or Changing the Mail Classification Schedule § 3001.69 Expedited minor classification cases. (a) Applicability . This section applies when the Postal Service requests a recommended decision pursuant to section 3623 and seeks expedited review on the ground that the requested change in mail classification is minor in character. The requirements and procedures specified in this section apply exclusively to Commission consideration of requested mail classification changes which the Postal Service denominates as, and the Commission finds to be, minor in character. (b) Considerations . A requested classification change may be considered minor in character if it: (1) Would not involve a change in any existing rate or fee; (2) Would not impose any restriction in addition to pre-existing conditions of eligibility for the entry of mail in an existing subclass or category of service or for an existing rate element or worksharing discount; and (3) Would not significantly increase or decrease the estimated institutional cost contribution of the affected subclass or category of service. (c) Filing of formal request and prepared direct evidence . Whenever the Postal Service determines to file a request under this section, it shall file a request for a change in mail classification pursuant to § 3623 that comports with the requirements of this section and of Subpart C of the rules of practice. Each such formal request shall include the following information: (1) A description of the proposed classification change or changes, including proposed changes in the text of the Domestic Mail Classification Schedule and any pertinent rate schedules; (2) A thorough explanation of the grounds on which the Postal Service submits that the requested change in mail classification is minor in character; and (3) An estimate, prepared in the greatest level of detail practicable, of the overall impact of the requested change in mail classification on postal costs and revenues, mail users and competitors of the Postal Service. (d) Data and information filing requirements . Formal requests generally require the submission of the data and information specified in § 3001.64. (1) If the Postal Service believes that data required to be filed under § 3001.64 are unavailable, it shall explain their unavailability as required by § 3001.64(a)(2)(i), (ii), and (iv). (2) If the Postal Service believes that data or other information required to be filed under § 3001.64 should not be required in light of the minor character of the requested change in mail classification, it shall move for a waiver of that requirement. The motion shall state with particularity the reasons why the character of the request and its circumstances justify a waiver of the requirement. (3) A satisfactory explanation of the unavailability of information required under § 3001.64 or of why it should not be required to support a particular request will constitute grounds for excluding from the proceeding a contention that the absence of the information should form a basis for rejection of the request, unless the party desiring to make such a contention: (i) Demonstrates that, considering all the facts and circumstances of the case, it was clearly unreasonable for the Postal Service to propose the change in question without having first secured the information and submitted it in accordance with § 3001.64; or (ii) Demonstrates other compelling and exceptional circumstances requiring that the absence of the information in question be treated as bearing on the merits of the proposal. (e) Expedited procedural schedule . The Commission will treat requests under this section as subject to the maximum expedition consistent with procedural fairness. (1) Persons who are interested in participating in proceedings initiated under this section may intervene pursuant to Subpart A of the rules of practice. Parties may withdraw from a proceeding by filing a notice with the Secretary of the Commission. (2) When the Postal Service files a request under this section, it shall comply with the Filing Online procedures of §§ 3001.9 through 3001.12. (3) When the Postal Service files a request under this section, it shall on that same day file a notice that briefly describes its proposal. This notice shall indicate on its first page that it is a notice of a request for a minor change in mail classification to be considered under this section. (4) Within 5 days after receipt of a Postal Service request invoking § 3001.69, the Commission shall issue a notice of proceeding and provide for intervention by interested persons pursuant to Subpart A of the rules of practice. The notice of proceeding shall state that the Postal Service has denominated the mail classification change as a minor change, and has requested expedited consideration pursuant to § 3001.69. The notice shall further state the grounds on which the Postal Service submits that the requested change in mail classification is minor in character and shall afford all interested persons a minimum of 15 days after filing of the Postal Service's request within which to intervene, submit responses to the Postal Service's request for consideration of its proposed mail classification change under § 3001.69, and request a hearing. (5) Within 28 days after publication of the notice of proceeding pursuant to paragraph (e)(4) of this section, the Commission shall decide whether to consider the request under this section and shall issue an order incorporating that ruling. The Commission shall order a request to be considered under this section if it finds: (i) The requested classification change is minor in character; and (ii) The effects of the requested change are likely to be appropriately limited in scope and overall impact. (6) If the Commission determines that a Postal Service request is appropriate for consideration under this section, those respondents who request a hearing shall be directed to state with specificity within 14 days after publication of that determination the issues of material fact that require a hearing for resolution. Respondents shall also identify the fact or facts set forth in the Postal Service's filing that the party disputes, and when possible, what the party believes to be the fact or facts and the evidence it intends to provide in support of its position. (7) The Commission will hold hearings on a Postal Service request considered under this section when it determines that there are genuine issues of material fact to be resolved and that a hearing is needed to resolve those issues. Hearings on a Postal Service request will commence within 21 days after issuance of the Commission determination pursuant to paragraph (e)(5) of this section. Testimony responsive to the Postal Service's request will be due 14 days after the conclusion of hearings on the Postal Service request. (8) If the Commission determines that a request of the Postal Service is not appropriate for consideration under this section, the request will be considered in accordance with appropriate provisions of the Commission's rules. (f) Time limits. The schedule involving a request under this section will allow for issuance of a recommended decision: (1) Not more than 90 days after the filing of a Postal Service request if no hearing is held; and (2) Not more than 120 days after the filing of a request if a hearing is scheduled. § 3001.69a [Removed] 4. Remove § 3001.69a. § 3001.69b [Removed] 5. Remove § 3001.69b. § 3001.69c [Removed] 6. Remove § 3001.69c. § 3001.161 [Amended] 7. In § 3001.161, remove paragraph (b) and remove the designation of paragraph (a). § 3001.163 [Amended] 8. In § 3001.163, revise paragraphs (b), (d), and (e) to read as follows: § 3001.163 Procedures—expedition of public notice and procedural schedule. (b) Persons who are interested in participating in proceedings to consider Postal Service requests to conduct a market test may intervene pursuant to Subpart A of the rules of practice. Parties may withdraw from a particular case by filing a notice with the Secretary of the Commission. (d) When the Postal Service files a request under the provisions of this subpart, it shall on that same day file a notice that briefly describes its proposal. This notice shall indicate on its first page that it is a notice of a Market Test Request to be considered under §§ 3001.161 through 3001.166. (e) Within 5 days after receipt of a Postal Service request under the provisions of this subpart, the Commission shall issue a notice of proceeding and provide interested persons a minimum of 15 days after filing of the Postal Service request within which to intervene. In the event that a party wishes to dispute a genuine issue of material fact to be resolved in the consideration of the Postal Service's request, that party shall file with the Commission a request for a hearing within the time allowed in the notice of proceeding. The request for a hearing shall state with specificity the fact or facts set forth in the Postal Service's filing that the party disputes, and when possible, what the party believes to be the fact or facts and the evidence it intends to provide in support of its position. The Commission will hold hearings on a Postal Service request made pursuant to this subpart when it determines that there is a genuine issue of material fact to be resolved, and that a hearing is needed to resolve that issue. § 3001.171 [Amended] 9. In § 3001.171, remove paragraph (b) and remove the designation for paragraph (a). § 3001.173 [Amended] 10. In § 3001.173, revise paragraphs (b), (d), and (e) to read as follows: § 3001.173 Procedures—expedition of public notice and procedural schedule. (b) Persons who are interested in participating in a proceeding to consider Postal Service requests to establish a provisional service may intervene pursuant to Subpart A of the rules of practice. Parties may withdraw from a proceeding by filing a notice with the Secretary of the Commission. (d) When the Postal Service files a request under the provisions of this subpart, it shall on that same day file a notice that briefly describes its proposal. Such notice shall indicate on its first page that it is a notice of a Request for Establishment of a Provisional Service to be considered under §§ 3001.171 through 3001.176. (e) Within 5 days after receipt of a Postal Service request under the provisions of this subpart, the Commission shall issue a notice of proceeding and provide interested persons a minimum of 15 days after filing of the Postal Service request within which to intervene. In the event that a party wishes to dispute a genuine issue of material fact to be resolved in the consideration of the Postal Service's request, that party shall file with the Commission a request for a hearing within the time allowed in the notice of proceeding. The request for a hearing shall state with specificity the fact or facts set forth in the Postal Service's filing that the party disputes, and when possible, what the party believes to be the fact or facts and the evidence it intends to provide in support of its position. The Commission will hold hearings on a Postal Service request made pursuant to this subpart when it determines that there is a genuine issue of material fact to be resolved, and that a hearing is needed to resolve that issue. 11. Revise § 3001.174 to read as follows: § 3001.174 Rule for decision. The Commission will issue a decision on the Postal Service's proposed provisional service in accordance with the policies of the Postal Reorganization Act, but will not recommend modification of any feature of the proposed service which the Postal Service has identified in accordance with § 3001.172(a)(3). The purpose of this subpart is to allow for consideration of proposed provisional services within 90 days, consistent with the procedural due process rights of interested persons. § 3001.181 [Amended] 12. In § 3001.181, remove paragraph (b), remove the designation of paragraph (a). [FR Doc. E6-19289 Filed 11-15-06; 8:45 am] BILLING CODE 7710-FW-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2006-0059; FRL-8242-4] Approval and Promulgation of Air Quality Implementation Plans; Virginia; State Implementation Plan Revision for Burlington Industries, Clarksville, VA AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. This revision consists of the removal of a Consent Agreement (Agreement) currently in the SIP for the control of sulfur dioxide emissions from Burlington Industries located in Clarksville, Virginia. This Agreement has been superseded by a federally enforceable state operating permit that imposes operating restrictions on the facility's boilers and the shutdown of the remainder of the facility. This action is being taken under the Clean Air Act (CAA). DATES: Effective Date: This final rule is effective on December 18, 2006. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2006-0059. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: Sharon McCauley, (215) 814-3376, or by e-mail at mccauley.sharon@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On July 11, 2006 (71 FR 39330), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of the removal of an Agreement from the Virginia SIP. The Agreement was written for the control of emissions of sulfur dioxide from the Burlington Industries facility located in Clarksville, Mecklenburg County, Virginia. This Agreement has been superseded by a federally enforceable state operating permit dated May 17, 2004, which imposes operating restrictions on the facility's boilers and the subsequent shutdown of the remainder of the facility. The formal SIP revision was submitted by Virginia on July 12, 2004. Other specific requirements of the SIP revision for Burlington Industries, Clarksville, Virginia and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR. II. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * ” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.” Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law. III. Final Action EPA is approving the removal of the Consent Agreement for Burlington Industries, Clarksville, Virginia as a revision to the Virginia SIP. IV. Statutory and Executive Order Reviews A. General Requirements 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. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will 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). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. 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. 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. ). B. Submission to Congress and the Comptroller General 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for one named source. C. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 16, 2007. 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 may be filed, and shall not postpone the effectiveness of such rule or action. This action, to approve the removal of the Consent Agreement for Burlington Industries, Clarksville, Virginia, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Reporting and recordkeeping requirements, Sulfur oxides. Dated: November 3, 2006. Donald S. Welsh, Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart VV—Virginia § 52.2420 [Amended] 2. In § 52.2420, the table in paragraph (d) is amended by removing the entry for Burlington Industries. [FR Doc. E6-19272 Filed 11-15-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2006-0497; FRL-8243-2] RIN 2060-AN96 Standards of Performance for Industrial-Commercial-Institutional Steam Generating Units AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: New source performance standards (NSPS) limiting emissions of, among other pollutants, nitrogen oxides (NO ^X ) from industrial-commercial-institutional steam generating units capable of combusting more than 100 million British thermal units (Btu) per hour were promulgated on November 25, 1986. The standards limit NO ^X emissions from the combustion of fossil fuels either solely or in combination with other fuels or wastes. The standards include provisions for the establishment of facility-specific NO ^X standards for steam generating units which simultaneously combust fossil fuel and chemical byproduct/waste under certain conditions. This amendment promulgates a facility-specific NO ^X standard for a steam generating unit which simultaneously combusts fossil fuel and chemical byproduct offgas at the Innovene USA LLC facility located in Lima, Ohio. DATES: This direct final rule will be effective on January 16, 2007 without further notice, unless EPA receives material adverse comments by December 18, 2006, unless a hearing is requested by November 27, 2006. If a timely hearing request is submitted, the hearing will be held on December 1, 2006 and we must receive written comments on or before January 2, 2007. If EPA receives such comments, it will publish a timely withdrawal in the Federal Register indicating the amendment is being withdrawn due to adverse comments. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0497, by one of the following methods: • http://www.regulations.gov. Follow the on-line instructions for submitting comments. • E-mail: a-and-r-docket@epa.gov. • Fax: (202) 566-1741. • Mail: Air and Radiation Docket and Information Center, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies. • Hand Delivery: Air and Radiation Docket and Information Center, U.S. EPA, 1301 Constitution Avenue, NW., Room B102, Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. We request that a separate copy also be sent to the contact person listed below (see FOR FURTHER INFORMATION CONTACT ). Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0497. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov, or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: 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 and Radiation Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA's Federal Register notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at http://www.epa.gov/epahome/dockets.htm for current information on docket status, locations, and telephone numbers. The Docket Center's mailing address for U.S. mail and the procedure for submitting comments to http://www.regulations.gov are not affected by the flooding and will remain the same. FOR FURTHER INFORMATION CONTACT: Mr. James A. Eddinger, Energy Strategies Group, Emission Standards Division (D243-01), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number (919) 541-5426; facsimile number (919) 541-5450; electronic mail address eddinger.jim@epa.gov. SUPPLEMENTARY INFORMATION: Regulated Entities. The only regulated entity that will be affected by this direct final rule amendment is the Innovene USA facility located in Lima, Ohio. Comments. We are publishing this direct final rule without prior proposal because we view it as noncontroversial and do not anticipate adverse comments. However, in the Proposed Rules section of today's Federal Register , we are publishing a separate document that will serve as the proposal in the event that adverse comments are filed. If we receive any adverse comments on a specific element of this direct final rule, we will publish a timely withdrawal in the Federal Register informing the public that the amendment is being withdrawn due to adverse comment. We will address all public comments in a subsequent final rule based on the proposed rule. The amendment in this direct final rule will become effective on the date set out above if we do not receive adverse comment. We will not institute a second comment period on this direct final rule. Any parties interested in commenting must do so at this time. World Wide Web (WWW). In addition to being available in the docket, electronic copies of this direct final rule will be posted on the Technology Transfer Network's (TTN) policy and guidance information page http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. Judicial Review. Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this direct final rule is available only on the filing of a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by January 16, 2007. Under section 307(d)(7)(B) of the CAA, only an objection to this direct final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements that are subject to this action may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements. Organization of This Document. The following outline is provided to aid in locating information in this preamble. I. Background II. What Is EPA Finalizing Under This Action? III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act 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 Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Congressional Review Act I. Background The objective of the NSPS, promulgated on November 25, 1986, is to limit NO ^X emissions from the combustion of fossil fuel. For steam generating units combusting byproduct/waste, the requirements of the NSPS vary depending on the mode of operation of the steam generating units. During periods when only fossil fuel is combusted, the steam generating unit must comply with the NO ^X emission limits in the NSPS for fossil fuel. During periods when only byproduct/waste is combusted, the steam generating unit may be subject to other requirements or regulations which limit NO ^X emissions, but it is not subject to NO ^X emission limits under the NSPS. In addition, if the steam generating unit is subject to federally enforceable permit conditions limiting the amount of fossil fuel combusted in the steam generating unit to an annual capacity factor of 10 percent or less, the steam generating unit is not subject to NO ^X emission limits under the NSPS when it simultaneously combusts fossil fuel and byproduct/waste. With the exception noted above, during periods when fossil fuel and byproduct/waste are simultaneously combusted in a steam generating unit, the unit must generally comply with NO ^X emission limits under 40 CFR 60.44b(e) of the NSPS. Under 40 CFR 60.44b(e) the applicable NO ^X emission limit depends on the nature of the byproduct/waste combusted. In some situations, however, “facility-specific” NO ^X emission limits developed under 40 CFR 60.44b(f) may apply. The order for determining which NO ^X emission limit applies is as follows. A steam generating unit simultaneously combusting fossil fuel and byproduct/waste is expected to comply with the NO ^X emission limit under 40 CFR 60.44b(e); only in a few situations may NO ^X emission limits developed under 40 CFR 60.44b(f) apply. An equation in 40 CFR 60.44b(e) is included to determine the NO ^X emission limit applicable to a steam generating unit when it simultaneously combusts fossil fuel and byproduct/ waste. Only where a steam generating unit which simultaneously combusts fossil fuel and byproduct/waste is unable to comply with the NO ^X emission limit determined under 40 CFR 60.44b(e), might a facility-specific NO ^X emission limit under 40 CFR 60.44b(f) apply. That section permits a steam generating unit to petition the Administrator for a facility-specific NO ^X emission limit. A facility-specific NO ^X emission limit will be proposed and promulgated by the Administrator for the steam generating unit only where the petition is judged to be complete. To be considered complete, a petition for a facility-specific NO ^X standard under 40 CFR 60.44b(f) consists of three components. To satisfy the first component, the steam generating unit must demonstrate compliance with the NO ^X emission limit when combusting fossil fuel alone. This provision ensures that the steam generating unit has installed best demonstrated NO ^X control technology, identified the NO ^X control technology, and identified the manner in which this technology is operated to achieve compliance with the NO ^X emission limit for fossil fuel. To satisfy the second component, the steam generating unit must demonstrate that the NO ^X control technology does not comply with the NO ^X emission limit when the unit simultaneously combusts fossil fuel and chemical byproduct/ waste. The unit must demonstrate this non-compliance under the same operating conditions used to demonstrate compliance with fossil fuel alone. In addition, the steam generating unit must identify what unique and specific properties of the chemical byproduct/waste are responsible for preventing compliance with the NO ^X emission limit for fossil fuel. Byproduct/waste is defined in subpart Db as being a liquid or gaseous substance. Thirdly, the steam generating unit must provide data and/or analyses to support a facility-specific NO ^X standard that represents the emissions while simultaneously combusting fossil fuel and chemical byproduct/waste. The unit must perform these analyses while operating the NO ^X control technology under the same conditions used to demonstrate compliance with the NO ^X emission limit for fossil fuel, if only fossil fuel were combusted. In addition to identifying the NO ^X emission limit, the unit must identify appropriate testing, monitoring, reporting and recordkeeping procedures to ensure proper operation of the NO ^X control technology and minimize NO ^X emissions at all times. Upon receipt of a complete petition, the Administrator will propose a facility-specific NO ^X standard for the steam generating applicable during those times when it simultaneously combusts chemical byproduct/waste with fossil fuel. The NO ^X standard will include the NO ^X emission limit(s) and/or operating parameter limit(s) to ensure proper operation of the NO ^X control technology at all times, as well as appropriate testing, monitoring, reporting and recordkeeping requirements. Innovene USA LLC has submitted a petition requesting that EPA adopt a facility-specific NO ^X standard for the absorber offgas incinerator (AOGI) at its acrylonitrile production process facility in Lima, Ohio. The AOGI contains a steam generating heat recovery section which qualifies the AOGI as a steam generating unit subject to NSPS subpart Db. The AOGI combusts natural gas to incinerate the offgas from the reactor and absorber section of the acrylonitrile production process. The AOGI was installed to destroy the volatile organic compounds and hazardous air pollutants (HAP) in the vent stream generated by the acrylonitrile manufacturing process. While the AOGI is designed to comply with Subpart Db while firing natural gas, the combustion of the offgas with natural gas in the AOGI results in a NO ^X emission rate in excess of the NSPS limit. II. What Is EPA Finalizing Under This Action? Based on a review of the Innovene USA's petition for an alternative NO ^X standard, EPA's Office of Air Quality Planning and Standards has determined the petition to be complete and an alternative facility-specific standard to be appropriate. This determination is appropriate because the AOGI is designed to minimize the formation of NO ^X from the combustion of the fuel as well as the formation of NO ^X generated by the nitrogen bound organic compounds in the offgas. The alternative NO ^X standard is based on analysis of NO ^X emissions continuously monitored during operation of the AOGI while burning the offgas. An alternative NO ^X standard of 1.5 pounds per million Btu heat input is provided in the final rule amendment. EPA also indicates reporting and recordkeeping requirements for the owner or operator of the AOGI. III. 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 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. B. Paperwork Reduction Act This action imposes no new information collection requirements on the industry. Because there is no additional burden on the industry as a result of this action, the information collection requests have not been revised. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations 40 CFR Part 60, Subpart Db under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0072, EPA ICR number 1088.10. A copy of the OMB approved Information Collection Request (ICR) may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for our regulations are listed in 40 CFR part 9 and 40 CFR chapter 15. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of the direct final rule on small entities, small entity is defined as: (1) A small business whose parent company has fewer than 100 or 1,000 employees, or fewer than 4 billion kilowatt-hr per year of electricity usage, depending on the size definition for the affected North American Industry Classification System code; (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 that is independently owned and operated and is not dominant in its field. After considering the economic impacts of the direct final rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. This direct final rule will not impose any requirements on small entities because it does not impose any additional regulatory requirements. 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 proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective, or least burdensome alternative that achieves the objective 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 this 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 our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this direct final rule amendment does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year, nor does this direct final rule significantly or uniquely impact small governments, because it contains no requirements that apply to such governments or impose obligations upon them. Thus, the requirements of sections 202 and 205 of the UMRA do not apply to the direct final rule. E. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999) requires us to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This direct final rule does not have federalism implications. It will not have new 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 codifies a facility-specific NO ^X standard. There are minimal, if any, impacts associated with this action. Thus, Executive Order 13132 does not apply to the direct final rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 (65 FR 67249, November 6, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This direct final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to the direct final rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we 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 we considered. We interpret Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This direct final rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This direct final rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in our regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when an agency does not use available and applicable voluntary consensus standards. These direct final rule amendments do not involve technical standards. Therefore, this direct final rule is not subject to NTTAA. J. 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. EPA will submit a report containing this direct final 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 this direct final rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This direct final rule is not a “major rule” as defined by 5 U.S.C. section 804(2). The direct final rule amendments are effective on January 16, 2007. List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedures, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: November 9, 2006. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I, part 60 of the Code of Federal Regulations is amended to read as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart Db—[Amended] 2. Section 60.49b is amended by adding paragraph (y) to read as follows: § 60.49b Reporting and recordkeeping requirements. (y) Facility-specific nitrogen oxides standard for Innovene USA's AOGI located in Lima, Ohio: (1) Standard for nitrogen oxides . (i) When fossil fuel alone is combusted, the nitrogen oxides emission limit for fossil fuel in § 60.44b(a) applies. (ii) When fossil fuel and chemical byproduct/waste are simultaneously combusted, the nitrogen oxides emission limit is 645 ng/J (1.5 lb/million Btu). (2) Emission monitoring for nitrogen oxides . (i) The nitrogen oxides emissions shall be determined by the compliance and performance test methods and procedures for nitrogen oxides in § 60.46b. (ii) The monitoring of the nitrogen oxides emissions shall be performed in accordance with § 60.48b. (3) Reporting and recordkeeping requirements . (i) The owner or operator of the AOGI shall submit a report on any excursions from the limits required by paragraph (x)(2) of this section to the Administrator with the quarterly report required by paragraph (i) of this section. (ii) The owner or operator of the AOGI shall keep records of the monitoring required by paragraph (x)(3) of this section for a period of 2 years following the date of such record. (iii) The owner or operator of the AOGI shall perform all the applicable reporting and recordkeeping requirements of this section. [FR Doc. E6-19386 Filed 11-15-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 239 and 258 [EPA-R07-RCRA-2006-0877; FRL-8242-9] Adequacy of Missouri Municipal Solid Waste Landfill Program AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: This action approves Missouri's Research, Development and Demonstration (RD&D) permit program and updates to the approved Municipal Solid Waste Landfill Permit (MSWLP) program. On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued to certain municipal solid waste landfills by approved states. On April 14, 2006, Missouri submitted an application to the EPA seeking Federal approval of its RD&D requirements and to update Federal approval of its MSWLP program. DATES: This direct final determination is effective January 16, 2007, without further notice unless EPA receives adverse comments by December 18, 2006. If adverse comments are received, EPA will publish a timely response or withdrawal of the direct final rule in the Federal Register informing the public that the rule will or will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-RCRA-2006-0877, by one of the following methods: 1. http://www.regulations.gov. Follow the on-line instruction for submitting comments. 2. E-mail: Mclaughlin.chilton@epa.gov. 3. Mail: Send written comments to Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. 4. Hand Delivery or Courier. Deliver your comments to Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. Instructions: Direct your comments to Docket ID No. EPA-R07-RCRA-2006-0877. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e. , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30, excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. FOR FURTHER INFORMATION CONTACT: Chilton McLaughlin at (913) 551-7666, or by e-mail at Mclaughlin.chilton@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued at certain municipal solid waste landfills (69 FR 13242). This new provision may only be implemented by an approved State. While States are not required to seek approval for this new provision, those States that are interested in providing RD&D permits to municipal solid waste landfills must seek approval from EPA before issuing such permits. Missouri received final approval for 40 CFR part 258 provisions on April 13, 1994 (59 FR 17526). This request incorporates the November 27, 1996, rule (61 FR 60328, at 60337), which adds financial mechanisms for local governments, and the April 10, 1998, rule (63 FR 17706, at 17729), which adds financial test and corporate guarantee to financial assurance mechanisms. Approval procedures for new provisions of 40 CFR part 258 are outlined in 40 CFR 239.12. On April 14, 2006, Missouri submitted an application for approval of its RD&D permit provisions and update of the approved MSWLP program. II. Decision After a thorough review, EPA Region 7 determined that Missouri's RD&D provisions as defined under Missouri Solid Waste Management Regulations, 10 CSR 80, and Missouri Solid Waste Management Statute, Title 16: Conservation, Resources and Development, Chapter 260: Environmental Control are adequate to ensure compliance with the Federal criteria as defined at 40 CFR 258.4. III. Statutory and Executive Order Reviews This action approves State solid waste requirements pursuant to Resource Conservation and Recovery Act (RCRA) Section 4005 and imposes no Federal requirements. Therefore, this rule complies with applicable executive orders and statutory provisions as follows: 1. Executive Order 12866: Regulatory Planning Review—The Office of Management and Budget has exempted this action from its review under Executive Order (EO) 12866; 2. Paperwork Reduction Act: This action does not impose an information collection burden under the Paperwork Reduction Act; 3. Regulatory Flexibility Act: After considering the economic impacts of today's action on small entities under the Regulatory Flexibility Act, I certify that this action will not have a significant economic impact on a substantial number of small entities; 4. Unfunded Mandates Reform Act: Because this action approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, this action does not contain any unfunded mandate, or significantly or uniquely affect small governments, as described in the Unfunded Mandates Act; 5. Executive Order 13132: Federalism—EO 13132 does not apply to this action because this action will not have federalism implications ( i.e. , there are no substantial direct effects on States, on the relationship between the national government and States, or on the distribution of power and responsibilities between Federal and State governments); 6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments—EO 13175 does not apply to this action because it will not have tribal implications ( i.e. , there are no substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes); 7. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks—This action is not subject to EO 13045 because it is not economically significant and is not based on health or safety risks; 8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use—This action is not subject to EO 13211 because it is not a significant regulatory action as defined in EO 12866; 9. National Technology Transfer Advancement Act: EPA approves State programs so long as the State programs meet the criteria delineated in RCRA. It would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets RCRA requirements. Thus, section 12(d) of the National Technology Transfer and Advancement Act does not apply to this action; 10. Congressional Review Act: EPA will submit a report containing this action and other information required by the Congressional Review Act (5 U.S.C. 801 et seq. ) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . List of Subjects 40 CFR Part 239 Environmental protection, Administrative practice and procedure, Intergovernmental relations, Waste treatment and disposal. 40 CFR Part 258 Reporting and recordkeeping requirements, Waste treatment disposal, Water pollution control. Authority: This action is issued under the authority of section 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6945 and 6949(a). Dated: November 6, 2006. John B. Askew, Regional Administrator, Region 7. [FR Doc. E6-19384 Filed 11-15-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 239 and 258 [EPA-R07-RCRA-2006-0878; FRL-8242-6] Adequacy of Nebraska Municipal Solid Waste Landfill Program AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: This action approves Nebraska's Research, Development and Demonstration (RD&D) permit program and updates to the approved Municipal Solid Waste Landfill Permit (MSWLP) program. On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued to certain municipal solid waste landfills by approved states. On September 27, 2006, Nebraska submitted an application to the EPA seeking Federal approval of its RD&D requirements and to update Federal approval of its MSWLP program. DATES: This direct final rule is effective January 16, 2007, without further notice unless EPA receives adverse comments by January 16, 2007. If adverse comments are received, EPA will publish a timely response or withdrawal of the direct final rule in the Federal Register informing the public that the rule will or will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-RCRA-2006-0878, by one of the following methods: 1. http://www.regulations.gov. Follow the on-line instruction for submitting comments. 2. E-mail : Mclaughlin.chilton@epa.gov. 3. Mail: Send written comments to Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. 4. Hand Delivery or Courier. Deliver your comments to Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. Instructions: Direct your comments to Docket ID No. EPA-R07-RCRA-2006-0878. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail information that you consider to be CBI or otherwise protected. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e. , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30, excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. FOR FURTHER INFORMATION CONTACT: Chilton McLaughlin at (913) 551-7666, or by e-mail at Mclaughlin.chilton@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued at certain municipal solid waste landfills (69 FR 13242). This new provision may only be implemented by an approved state. While states are not required to seek approval for this new provision, those states that are interested in providing RD&D permits to municipal solid waste landfills must seek approval from EPA before issuing such permits. The current request is for approval to issue RD&D permits. Nebraska received partial approval for 40 CFR part 258 provisions on October 5, 1993 (58 FR 51819). The provision that it received partial approval for derived from an opinion by the United States Court of Appeals on February 12, 1992, which instructed EPA to require groundwater monitoring at all landfills. The updated state rules impose groundwater monitoring at small, arid landfills. The current request also incorporates the August 7, 1995, rule (60 FR 40105), which corrects the financial assurance criteria; the September 25, 1996, rule (61 FR 50413), which relates to groundwater exemptions of small, arid, remote landfills; the November 27, 1996, rule (61 FR 60328, at 60337), which adds financial mechanisms for local governments; and the April 10, 1998, rule (63 FR 17706, at 17729), which adds a financial test and corporate guarantee to financial assurance mechanisms. Approval procedures for new provisions of 40 CFR part 258 are outlined in 40 CFR 239.12. On September 27, 2006, Nebraska submitted an amended application for approval of its RD&D permit provisions and an update of the approved MSWLP program. II. Decision After a thorough review, EPA Region 7 determined that Nebraska's RD&D provisions and the updated rules for its Municipal Solid Waste Landfill Permit Program as defined under Nebraska Title 132—Integrated Solid Waste Management Regulations, effective March 7, 2006, are adequate to ensure compliance with the Federal criteria as defined at 40 CFR 258.4. III. Statutory and Executive Order Reviews This action approves state solid waste requirements pursuant to Resource Conservation and Recovery Act (RCRA) Section 4005 and imposes no Federal requirements. Therefore, this rule complies with applicable executive orders and statutory provisions as follows: 1. Executive Order 12866: Regulatory Planning Review—The Office of Management and Budget has exempted this action from its review under Executive Order (EO) 12866; 2. Paperwork Reduction Act—This action does not impose an information collection burden under the Paperwork Reduction Act; 3. Regulatory Flexibility Act—After considering the economic impacts of today's action on small entities under the Regulatory Flexibility Act, I certify that this action will not have a significant economic impact on a substantial number of small entities; 4. Unfunded Mandates Reform Act—Because this action approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, this action does not contain any unfunded mandate, or significantly or uniquely affect small governments, as described in the Unfunded Mandates Act; 5. Executive Order 13132: Federalism—EO 13132 does not apply to this action because this action will not have federalism implications ( i.e. , there are no substantial direct effects on States, on the relationship between the national government and States, or on the distribution of power and responsibilities between Federal and State governments); 6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments—EO 13175 does not apply to this action because it will not have tribal implications ( i.e. , there are no substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes); 7. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks—This action is not subject to EO 13045 because it is not economically significant and is not based on health or safety risks; 8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use—This action is not subject to EO 13211 because it is not a significant regulatory action as defined in EO 12866; 9. National Technology Transfer Advancement Act—EPA approves State programs so long as the State programs meet the criteria delineated in RCRA. It would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets RCRA requirements. Thus, section 12(d) of the National Technology Transfer and Advancement Act does not apply to this action; 10. Congressional Review Act—EPA will submit a report containing this action and other information required by the Congressional Review Act (5 U.S.C. 801 et seq. ) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . List of Subjects 40 CFR Part 239 Environmental protection, Administrative practice and procedure, Intergovernmental relations, Waste treatment and disposal. 40 CFR Part 258 Reporting and recordkeeping requirements, Waste treatment disposal, Water pollution control. Authority: This action is issued under the authority of section 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6945 and 6949(a). Dated: November 6, 2006. John B. Askew, Regional Administrator, Region 7. [FR Doc. E6-19388 Filed 11-15-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 030221039-6295-34; I.D. 110806D] Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule. SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, announces temporary restrictions consistent with the requirements of the Atlantic Large Whale Take Reduction Plan's (ALWTRP) implementing regulations. These regulations apply to lobster trap/pot and anchored gillnet fishermen in an area totaling approximately 1,809 nm 2 (6,204 km 2 ), southeast of Portland, Maine, for 15 days. The purpose of this action is to provide protection to an aggregation of northern right whales (right whales). DATES: Effective beginning at 0001 hours November 18, 2006, through 2400 hours December 2, 2006. ADDRESSES: Copies of the proposed and final Dynamic Area Management (DAM) rules, Environmental Assessments (EAs), Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, and progress reports on implementation of the ALWTRP may also be obtained by writing Diane Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA 01930. FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast Region, 978-281-9300 x6503; or Kristy Long, NMFS, Office of Protected Resources, 301-713-2322. SUPPLEMENTARY INFORMATION: Electronic Access Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP web site at http://www.nero.noaa.gov/whaletrp/ . Background The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA) to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) due to incidental interaction with commercial fishing activities. In addition, the measures identified in the ALWTRP would provide conservation benefits to a fourth species (minke), which are neither listed as endangered nor threatened under the Endangered Species Act (ESA). The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result). On January 9, 2002, NMFS published the final rule to implement the ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/pot and anchored gillnet fishing gear in areas north of 40°N. lat. to protect right whales. Under the DAM program, NMFS may: (1) require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15-day period; (2) allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or (3) issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15-day period and asking fishermen not to set any additional gear in the DAM zone during the 15-day period. A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm 2 (139 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm2 (1.85 km 2 ). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting. On November 5, 2006, an aerial survey reported a sighting of 13 right whales in the proximity 43°29′ N. lat. and 68°27′ W. long. This position lies southeast of the Portland, Maine. After conducting an investigation, NMFS ascertained that the report came from a qualified individual and determined that the report was reliable. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP. Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data. NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. As a result of this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule. The DAM Zone is bound by the following coordinates: 43°52′ N., 68°56′ W. (NW Corner) 43°52′ N., 67°58′ W. 43°09′ N., 67°58′ W. 43°09′ N., 68°56′ W. 43°52′ N., 68°56′ W. (NW Corner) In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone. Lobster Trap/Pot Gear Fishermen utilizing lobster trap/pot gear within the portion of the Northern Inshore State Lobster Waters and Northern Nearshore Lobster Waters that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and 4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys. Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and 4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys. Anchored Gillnet Gear Fishermen utilizing anchored gillnet gear within the portions of the Other Northeast Gillnet Waters Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per string; 4. Each net panel must have a total of five weak links with a maximum breaking strength of 1,100 lb (498.8 kg). Net panels are typically 50 fathoms (91.4 m) in length, but the weak link requirements would apply to all variations in panel size. These weak links must include three floatline weak links. The placement of the weak links on the floatline must be: one at the center of the net panel and one each as close as possible to each of the bridle ends of the net panel. The remaining two weak links must be placed in the center of each of the up and down lines at the panel ends; 5. A weak link with a maximum breaking strength of 1,100 lb (498.8 kg) must be placed at all buoys; and 6. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string. The restrictions will be in effect beginning at 0001 hours November 18, 2006, through 2400 hours December 2, 2006, unless terminated sooner or extended by NMFS through another notification in the Federal Register . The restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon issuance of the rule by the AA. Classification In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator (AA) for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales. Environmental Assessments for the DAM program were prepared on December 28, 2001, and August 6, 2003. This action falls within the scope of the analyses of these EAs, which are available from the agency upon request. NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable. For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this document in the Federal Register . NMFS will also endeavor to provide notice of this action to fishermen through other means upon issuance of the rule by the AA, thereby providing approximately 3 additional days of notice while the Office of the Federal Register processes the document for publication. NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state. The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, Department of Commerce, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request ( ADDRESSES ). The rule implementing the DAM program has been determined to be not significant under Executive Order 12866. Authority: 16 U.S.C. 1361 et seq. and 50 CFR 229.32(g)(3) Dated: November 9, 2006. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 06-9227 Filed 11-13-06; 2:42 pm]