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Code · REGISTER · 2006-12-06 · Environmental Protection Agency (EPA) · Rules and Regulations

Rules and Regulations. Final rule; notice of final action on reconsideration

26,636 words·~121 min read·/register/2006/12/06/06-9541

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-13-M ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2002-0058; FRL-8252-2] RIN 2060-AN32 National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters: Reconsideration of Emissions Averaging Provision and Technical Corrections AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; notice of final action on reconsideration. SUMMARY: EPA is promulgating amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Industrial, Commercial, and Institutional Boilers and Process Heaters.
After promulgation of this final rule, the Administrator received petitions for reconsideration of certain provisions in the final rule. Subsequently, EPA published a notice of the reconsideration and requested public comment on proposed amendments to the NESHAP. After evaluating public comments, we are adopting each of the amendments that we proposed. DATES: This final rule is effective on February 5, 2007. The incorporation by reference of certain publications listed in this final rule is approved by the Director of the Office of **Federal Register** as of February 5, 2007.
ADDRESSES: EPA has established a docket for this action under docket ID No. EPA-HQ-OAR-2002-0058. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, *e.g.* , 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 at the Air and Radiation Docket and Information Center, EPA/DC, EPA West Building, 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. FOR FURTHER INFORMATION CONTACT: Mr. James Eddinger, Energy Strategies Group, Sector Policies and Programs Division (D243-01), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number:
(919)541-5426, fax number:
(919)541-5450, e-mail address: *eddinger.jim@epamail.epa.gov.* SUPPLEMENTARY INFORMATION: *Regulated Entities.* Categories and entities potentially regulated by the final rule: Category NAICS code Examples of potentially regulated entities Any industry using a boiler or process heater in the final rule 321 Manufacturers of lumber and wood products. 322 Pulp and paper mills. 325 Chemical manufacturers. 324 Petroleum refiners and manufacturers of coal products. 316, 326, 339 Manufacturers of rubber and miscellaneous plastic products. 331 Steel works. 332 Electroplating, plating, polishing, anodizing, and coloring. 336 Manufacturers of motor vehicle parts and accessories. 221 Electric, gas, and sanitary services. 622 Health services. 611 Educational Services. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this final rule. To determine whether your facility would be regulated by this final rule, you should carefully examine the applicability criteria in 40 CFR 63.7485 of this final rule. If you have any questions regarding the applicability of this final rule to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. *WorldWide Web (WWW).* In addition to being available in the docket, an electronic copy of this final rule will be available on the WWW through the Technology Transfer Network Web site (TTN). EPA has posted a copy of the final rule on the TTN's policy and guidance page for newly proposed or promulgated rules at *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 the final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by February 5, 2007. Under CAA section 307(d)(7)(B), only an objection to the final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under CAA section 307(b)(2), the requirements established by today's final action may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. *Background Information Document.* EPA proposed and provided notice of the reconsideration of the NESHAP for industrial, commercial, and institutional boilers and process heaters on October 31, 2005 (70 FR 62264) and received 17 comment letters on the proposal. A memorandum “National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters, Summary of Public Comments and Responses to GE Petition and Reconsideration of the Final Rule,” containing EPA's responses to each public comment is available in Docket No. EPA-HQ-OAR-2002-0058. *Organization of this document:* The information presented in this preamble is organized as follows: I. Statutory Authority for the Final Rule II. Background III. What changes are included in this final rule? A. American Society for Testing and Materials
(ASTM)Test Methods B. Utility Steam Generating Units C. Fuel Analysis Requirement D. Consolidated Testing 1. Compliance With Consolidated Testing 2. Monitoring of Common Stack 3. Emissions Averaging when Units in Different Subcategories are Ducted to Common Stack 4. Continuous Compliance With the Emissions Averaging Provision 5. Monthly Compliance Demonstrations and Calculations E. Definitions IV. Responses to Significant Comments A. Scope of Emissions Averaging Provision B. Compliance Testing and Monitoring C. Definitions D. Testing Methods V. 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. Statutory Authority for the Final Rule Section 112 of the Clean Air Act
(CAA)requires us to list categories and subcategories of major sources and area sources of hazardous air pollutant
(HAP)and to establish NESHAP for the listed source categories and subcategories. Industrial boilers, commercial and institutional boilers, and process heaters were listed on July 16, 1992 (57 FR 31576). Major sources of HAP are those that have the potential to emit greater than 10 tons per year
(tpy)of any one HAP or 25 tpy of any combination of HAP. II. Background On September 13, 2004 (69 FR 55218), we promulgated the NESHAP for industrial, commercial, and institutional
(ICI)boilers and process heaters (Boilers NESHAP) as subpart DDDDD of 40 CFR part 63 under section 112(d) of the CAA. The NESHAP contain technology-based emissions standards reflecting the maximum achievable control technology and a health-based compliance alternative for certain threshold pollutants. We proposed these standards for ICI boilers and process heaters on January 13, 2003 (68 FR 1660). In the preamble for the January 2003 proposed rule, we discussed our consideration of a bubbling compliance alternative and requested comment on incorporating a bubbling compliance alternative ( *i.e.* , emission averaging) into this final rule as part of EPA's general policy of encouraging the use of flexible compliance approaches where they can be properly monitored and enforced. (See 68 FR 1686.) Industry trade associations, owners/operators of boilers and process heaters, State regulatory agencies, local government agencies, and environmental groups submitted comments on the emissions averaging approach. We received a total of 40 public comment letters regarding the emissions averaging approach in the proposed rule during the comment period. We summarized major public comments on the proposed emissions averaging approach, along with our responses to those comments, in the preamble to the final rule (69 FR 55238) and in the memorandum “Response to Public Comments on Proposed Industrial, Commercial, and Institutional Boilers and Process Heaters NESHAP (Revised)” (RTC Memorandum) which was placed in the docket for the final rule. In the September 2004 final rule, we adopted an emissions averaging provision for existing large solid fuel boilers. The procedures that affected sources must use to demonstrate compliance through emissions averaging were promulgated at 40 CFR 63.7522. (See 69 FR 55257.) For each existing large solid fuel boiler in the averaging group, the emissions are capped at the emission level being achieved on the effective date of the final rule (November 12, 2004). Under emissions averaging provision in the 2004 final rule, compliance must be demonstrated on a 12-month rolling average basis, determined at the end of every calendar month. If a facility uses this option, it must also develop and submit an implementation plan to the applicable regulatory authority for review and approval no later than 180 days before the date that the facility intends to demonstrate compliance. Following promulgation of the emissions averaging provision in the final rule, the Administrator received a petition for reconsideration pursuant to section 307(d)(7)(B) of the CAA from General Electric (GE). Under this section, the Administrator is to initiate reconsideration proceedings if the petitioner can show that it was impracticable to raise an objection to a rule within the public comment period or that the grounds for the objection arose after the public comment period. GE requested that EPA reconsider portions of the emissions averaging provision that it believes could not have been practicably addressed during the public comment period. In the alternative, GE requested clarification that the final rule already allows for consolidated testing of commonly vented boilers. By a letter dated April 27, 2005, we informed GE that we intended to grant their petition for reconsideration. On October 31, 2005, we published a notice of reconsideration and proposed amendments to the final rule (70 FR 62264). In the notice of reconsideration of the emissions averaging provision, we proposed amendments to 40 CFR 63.7522 and solicited comment in the following areas:
(1)Allowing testing of a common stack in situations where each of the units vented to the common stack are in the existing solid fuel subcategory;
(2)treating a group of boilers that vent through a common emissions control system to a common stack as a single existing solid fuel boiler for the purpose of subpart DDDDD of 40 CFR part 63;
(3)treating a group of boilers that vent through more than one common emissions control system as distinct units and requiring individual compliance testing according to the methods specified in Table 8 to subpart DDDDD;
(4)demonstrating compliance with opacity limits using a single continuous opacity monitoring system
(COMS)located in the common stack if each of the boilers venting to the common stack has an applicable opacity limit;
(5)treating certain common stack situations as a single emission point for purposes of averaging emissions with other existing large solid fuel boilers located at the facility. In addition, our October 31, 2005 notice of proposed rulemaking included several corrections to subpart DDDDD of 40 CFR part 63 that were not related to emissions averaging. Several clarifying amendments addressed:
(1)The applicability of firetube boilers in the small unit subcategories and limited use subcategories;
(2)the definitions of firetube and watertube boilers with respect to “hybrid boilers”; and
(3)the equivalent methods allowed in Table 6 to subpart DDDDD. The proposed corrections include language that:
(1)Excludes electric utility steam generating units that are covered by 40 CFR part 60, subpart Da or 40 CFR part 60, subpart HHHH;
(2)adds Equation 4A to subpart DDDDD for calculating a 12-month rolling average emission rate when using the emissions averaging option;
(3)requires an oxygen monitor to be installed when a carbon monoxide monitor is required by the rule; and
(4)updates American Society of Testing and Materials
(ASTM)test methods in Table 6 to subpart DDDDD. A comprehensive response to public comments is available in a document entitled “National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters, Summary of Public Comments and Responses to GE Petition and Reconsideration of the Final Rule,” which can be found in the docket (Docket No. EPA-HQ-OAR-2002-0058). III. What Changes Are Included in This Final Rule? In this final action, we are making a limited number of corrections and amendments to 40 CFR 63.14 and sections 63.7491, 63.7510, 63.7522, 63.7525, 63.7540, 63.7541, 63.7575, and Table 6 of subpart DDDDD consistent with our October 2005 proposal. These changes improve and clarify the procedures for implementing the emissions averaging provision and for conducting compliance testing when boilers are vented to a common stack. Among other technical corrections, we also are clarifying several definitions to help affected sources classify “limited use” and “hybrid” boilers. We have modified some of regulatory language that we proposed based on public comments, but overall, we are adopting amendments to the emission averaging provision and other provision in subpart DDDDD that are in substantially the same form as what we proposed in October 2005. A. American Society for Testing and Materials
(ASTM)Test Methods We are adopting the proposed revisions relating to ASTM test methods without change. As suggested by the ASTM, we are amending Table 6 to subpart DDDDD to reflect updated ASTM test methods. Similar changes are also being made to 40 CFR 60.14 (Incorporation by Reference) of the General Provisions. Additionally, we are publishing in Table 1 of this preamble a list of testing methods that EPA previously reviewed and approved for use as “alternative” methods that are considered “equivalent” for the purpose of Table 6 to subpart DDDDD. Table 1.—List of Equivalent Methods Approved as of February 15, 2005 Pollutant or Analyte EPA-approved equivalent method Arsenic SW-846-7060. a SW-846-7060A. Chlorine ASTM D2361. Hydrogen Chloride SW-846-5050. SW-846-9056. SW-846-9076. SW-846-9250. ASTM E776-87. Mercury EPA Method 1631E. SW-846-1631. ASTM D6722-01. EPA 821-R-01-013. Higher Heating Value ASTM E711-87 (1996). ASTM D240. Moisture content of Coal Fuel ASTM D2691-95. Moisture Analysis EPA 160.3 Mod. Digestion Procedure EPA-821-R-01-03. ASTM D586 (Dry Ash method). Sample Preparation for TSM SW-846-3050B. Sample Preparation and Digestion for TSM SW-846-3050. TAPPI T266. Sample Preparation and Grinding ASTM E829-94. Selenium SW-846-7740. Total Selected Metals EPA 200.8. ASTM D6357-04. ASTM D4606-03. EPA 7060A. SW-846-6020A. SW-846-6020. a *http://www.epa.gov/epaoswer/hazwaste/test/sw846.htm.* This table is not meant to be exhaustive, because the list of equivalent methods is dynamic. This table is meant to serve as guidance for the methods that have been approved to date. We emphasize that equivalent methods may be used in lieu of the prescribed methods in Table 6 to subpart DDDDD at the discretion of the source owner or operator. Therefore, maintaining a list of “approved methods” in the final rule is not necessary. Similarly, approval of equivalent methods by EPA or the delegated implementation authority is not necessary. B. Utility Steam Generating Units We are adopting the regulatory language that we proposed to avoid overlapping coverage between subpart DDDDD of 40 CFR part 63 and other rules that apply to certain types of electric utility steam generating units. The types of boilers and process heaters that are not subject to subpart DDDDD are listed in 40 CFR 63.7491. Our intention was to exempt from subpart DDDDD any units that are already or will be subject to regulation for HAP under another standard. (See 69 FR 1663.) Because regulations relating to electric utility steam generating units were under development at the time of promulgation of subpart DDDDD, we were unable to reference a specific rule citation that applied to electric utility steam generating units. Instead, subpart DDDDD excluded electric utility steam generating units by using only the definition of electric utility steam generating units contained in section 112(a)(8) of the CAA. On May 18, 2005, EPA promulgated the Clean Air Mercury Rule (70 FR 28606). In that rule, EPA established standards of performance for mercury (40 CFR part 60, subpart Da) from new electric utility steam generating units, as well as mercury emission guidelines for existing electric utility steam generating units (40 CFR part 60, subpart HHHH). After that rule was promulgated, it was brought to our attention that the scope of the exclusion in subpart DDDDD of 40 CFR part 63 for electric utility steam generating units was unclear. Confusion resulted because 40 CFR part 60, subparts Da and HHHH, employ different definitions to determine applicability. (See 70 FR at 28609.) Thus, to clarify applicability of subpart DDDDD, we are amending 40 CFR 63.7491(c) to exclude “an electric utility steam generating unit (including a unit covered by 40 CFR part 60, subpart Da) or a Mercury Budget unit covered by 40 CFR part 60, subpart HHHH.” C. Fuel Analysis Requirement We received a comment raising the question of whether we intended for units which combust only a single fuel type to be required to conduct fuel analysis when demonstrating compliance through performance (stack) testing, as required by 40 CFR 63.7510(a). Our intent, as stated in the September 2004 preamble to the final rule (69 FR 55225), was that “Units burning only a single fuel type (not including startup fuels) do not need to determine, by fuel analysis, the fuel inlet operating limit when conducting performance tests.” In this final action, we are adding similar language to 40 CFR 63.7510(a) to make this understanding explicit in the text of our regulations. This change was not included among the corrections we proposed in October 2005. However, since this revision is based on language in the September 2004 preamble that has not given rise to any objection, we are adopting this correction as part of this final rule. D. Consolidated Testing and Emissions Averaging The current language for the emissions averaging option in 40 CFR 63.7522 requires testing of each individual boiler in the averaging group. Our intent with regard to the emissions averaging option in the final rule was to provide an equivalent, more flexible, and less costly compliance alternative. Since testing emissions from a common stack for a group of boilers would be equivalent to the average emissions calculated from emissions tests on each individual boiler, we are amending subpart DDDDD of 40 CFR part 63 to allow testing of emissions at the common stack under specified situations described below. Consolidated testing of the common stack must be conducted when each boiler is operated under representative testing conditions as specified in the National Stack Testing Guidance issued by EPA on September 30, 2005. The amendments to 40 CFR 63.7522 adopted in this action are substantially the same as what we proposed in October 2005. However, based on public comments, we have modified some of the proposed language and added some conforming amendments to other provisions of subpart DDDDD of 40 CFR part 63 that relate to emissions averaging. 1. Compliance With Consolidating Testing GE sought clarification on the consolidated testing procedures necessary to demonstrate compliance in two different common stack situations. In one situation, the exhaust from three existing large solid fuel boilers are combined and vented through a common emissions control system to a common stack. In the other situation, the exhaust from two existing large solid fuel boilers are each individually controlled prior to being vented to a common stack. In the revised regulatory provisions set forth below, we are amending this final rule to clarify how to demonstrate compliance under these two circumstances. The final amendments address these two circumstances in the same way that we proposed in October 2005. In the first situation, a group of units that share a common control device before venting to a common stack is treated as a single source. In such situations, an operator can demonstrate compliance by testing at the common stack without using the emissions averaging equations in 40 CFR 63.7522 for each unit or submitting an implementation plan. We are also adding language in section 63.7522(k) of subpart DDDDD to clarify that the common stack situations described above may be treated as a separate single emission point for purpose of including these units in an emissions averaging group with other existing large solid fuel boilers located at the facility. We are adopting a slightly different approach for averaging emissions from groups of affected units that vent to a common stack through more than one emissions control system. These distinct approaches are necessary to ensure that a source with more than one emissions control system demonstrates continuous compliance at each emissions control system. Where a group of boilers vents to a common stack through more than one emission control system, continuous compliance will be demonstrated according to the methods specified in Table 8 to subpart DDDDD. 2. Monitoring of Common Stack In this final action, we are adding an amendment to section 63.7541 of subpart DDDDD to address the COMS requirements for facilities participating in the emissions averaging option. If each of the boilers venting to a common stack has an applicable opacity operating limit, a dry control system, and no units from other subcategories or nonaffected units vent to the common stack, then a single COMS may be located in the common stack instead of each duct to the common stack. Alternately, if any of the boilers venting to the common stack does not have an applicable opacity operating limit, but each of the existing solid fuel units is equipped with a dry control system and no nonaffected units vent to the common stack, a COMS monitor may be located at the common stack instead of each duct to the common stack. We amended 40 CFR 63.7541 to allow for a COMS monitor at the common stack in this situation. We discussed this approach in the October 2005 proposal (70 FR at 62268), but did not include any regulatory language in that action. Commenters requested that we make explicit in our regulations that this practice is permissible when sources elect to demonstrate compliance using emissions averaging. 3. Emissions Averaging When Units in Different Subcategories Are Ducted to Common Stack In response to the GE petition for reconsideration, we proposed amendments that would limit the emissions averaging provision to common stack scenarios that contained solely units in the existing large solid fuel subcategory. In this final action, we have decided to expand the emissions averaging provision to allow units in the existing large solid fuel subcategory to conduct performance tests at the end of a common stack configuration with affected units from other subcategories and nonaffected units under specific circumstances. As a result of public comments submitted, we now recognize that affected units from several subcategories ( *e.g.* , both gas and solid fuel fired units) and nonaffected units are sometimes ducted to a common stack. To address these situations, we are adopting a revised amendment to the emissions averaging provision in 40 CFR 63.7522 that allows consolidated testing of units in the existing large solid fuel subcategory as long as the commonly vented units from other subcategories and nonaffected units follow specific procedures during the consolidated compliance test. The emissions averaging provision is only applicable to units in the existing large solid fuel subcategory. EPA did not find cause to promulgate emissions limitations for many of the subcategories of existing units. However, new units are subject to different emissions limitations than existing units. These differing emissions limitations make it difficult to allow consolidated testing of emissions from sources in different subcategories under an emissions averaging approach. However, to eliminate this obstacle to consolidated testing when existing large solid fuel units may share a duct or stack with units in other subcategories or nonaffected units covered by another NESHAP category, we are requiring facilities to shut down, or vent to a different stack, affected boilers or process heaters in other subcategories or nonaffected units in other categories prior to performing a consolidated compliance test for the units in the large solid fuel subcategory. Testing of a common stack in these situations will measure the average emissions from the averaging group of existing large solid fuel units, just as if each boiler in the large solid fuel subcategory was tested individually and their emissions averaged. By requiring the affected units from other subcategories or nonaffected units to be shut off, or vented to a different stack, during testing, the consolidated testing for certain stack configurations allows the group of existing large solid fuel boilers to demonstrate initial compliance at a lower cost. Allowing the testing of a common stack under these conditions also satisfies the criteria discussed in the September 2004 preamble to the final rule (69 FR 55239) that EPA has generally imposed on the scope and nature of emissions averaging programs. These criteria include:
(1)No averaging between different types of pollutants,
(2)no averaging between sources that are not part of the same major source,
(3)no averaging between sources within the same major source that are not subject to the same NESHAP, and
(4)no averaging between existing sources and new sources. This final rule fully satisfies each of these criteria. The provision promulgated in this action only allows averaging of emissions from existing units in the large solid fuel subcategory. Emissions from units that are shut down or vented elsewhere during compliance testing are not included in the average or co-mingled with the emissions that are the focus of the test. 4. Continuous Compliance With the Emissions Averaging Provision As a result of this expansion to the emissions averaging provision, we had to establish continuous compliance procedures with this provision to address common stack scenarios with units from multiple subcategories or nonaffected units. In this final rule, we are also amending 40 CFR 63.7541 to establish continuous compliance procedures under the emissions averaging provision for common stack configurations with different subcategories or nonaffected units. These amendments require affected units to maintain 3-hour average parametric limits on all the control devices for existing large solid fuel boilers venting to a common stack. The parametric limits will ensure that the control devices continue to operate under the conditions established during the initial compliance test. These amendments establish continuous compliance requirements for common stack configurations that were not previously eligible to comply with the emissions averaging provision. 5. Monthly Compliance Demonstrations and Calculations This final rule includes several additional amendments to subsections (d), (e), and
(f)of section 63.7522 that were recommended in public comments. These amendments clarify that, under the emissions averaging provision, continuous compliance must be demonstrated at the end of every month (12 times per year). In addition, we have made several corrections to the formulas used in emissions averaging calculations. Additional details on these amendments are reflected in the Response-to-Comments document that is available in Docket No. EPA-HQ-OAR-2002-0058. E. Definitions In the October 2005 notice, we proposed to add or amend several definitions in subpart DDDDD of 40 CFR part 63 to clarify our intent and correct inadvertent omissions. In this final action, we are adopting modified versions of several definitions based on public comments. In addition, we are promulgating three additional definitions to provide additional clarity requested by commenters. We have added a definition for “common stack” similar to the definition provided in 40 CFR part 72 at the request of some of the commenters. We have also added a definition for “voluntary consensus standards” since this term is used to define “equivalent” as this term is used in Table 6 of subpart DDDDD. We are adopting the same definition of “equivalent” that we proposed, but we have added language to Table 6 of subpart DDDDD to clarify that equivalent methods may be used in lieu of the prescribed methods in Table 6 at the discretion of the source owner or operator. The definitions for both “firetube boiler” and “watertube boiler” are amended to include criteria for classifying boilers designed with both firetubes and watertubes, commonly referred to as “hybrid boilers.” Based on comments, we are adopting a modified definition of firetube boiler to include boilers that utilize a containment shell that encloses firetubes and allows the water to vaporize and steam to separate. We have also modified the definition of watertube boilers that we proposed to include boilers that incorporate a steam drum with tubes connected to the drum to separate steam from water. We have amended the proposed definitions for both small gaseous and small liquid fuel subcategories to clarify that these subcategories include all firetube boilers, regardless of size, as well as other types of boilers with a rated capacity of 10 million MMBtu per hour heat input or less. We have amended the definitions to clarify our intent that firetube boilers greater than 10 MMBtu per hour heat input are still part of the small subcategory. We have also added an amendment to the definitions for both the small and large gaseous fuel subcategories to allow for units in these two categories to periodically test using liquid fuel as long as the tests do not exceed a combined total of 48 hours during any calendar year. This allowance was adopted because of the need to test an emergency fuel in order to ensure that the unit could effectively operate using the emergency fuel during a period of gas curtailment. California regulations stipulate a 48-hour limit on this periodic testing on emergency fuels, and we have adopted their precedent. We are also amending the definition of “fuel type” in response to a comment we received. Questions have been raised on whether we intended for units that may burn evidence seized in drug raids as a public service for a variety of enforcement agencies to test these materials as part of the compliance testing requirements. It is reportedly exceedingly difficult to arrange for a test of these materials given the security that surrounds them. Also, facilities have been approached about burning retired U.S. flags. Burning is the preferred mode of disposal of retired U.S. flags. Since we did not intend to include contraband materials, or U.S. flags, as a fuel when a facility is conducting performance tests or fuel analyses to demonstrate compliance, we are amending the definition of “fuel type” to include the statement “Contraband, prohibited goods, or retired U.S. flags, burned at the request of a government agency, are not considered a fuel type for the purpose of this subpart.” We do not classify facilities designed and operated for energy recovery as commercial and industrial solid waste incinerators if they combust small amounts of others materials. (See 70 FR 55568, 55575; September 22, 2005.) A revision to the definition of “fuel type” was not included among the corrections that we proposed. However, since this amendment addresses a *de minimis* situation that supports law enforcement efforts and respect for a national symbol, we are adopting this correction in this final action. IV. Responses to Significant Comments We received 17 public comment letters on the proposed rule and notice of reconsideration. Complete summaries of all the comments and EPA responses are found in the Response-to-Comments document (see SUPPLEMENTARY INFORMATION section). The most significant comments are summarized below. A. Scope of Emissions Averaging Provision *Comment:* Several commenters requested that EPA expand the common stack testing option to include common stack configurations with groups of boilers from different subcategories or units not subject to the boiler NESHAP. Two of these commenters added that in many situations the layout of boilers and ductwork to common stacks make it impractical to perform emissions testing on each individual boiler venting to the common stack due to a lack of appropriate sampling location and duct configurations. One commenter (OAR-2002-0058-0722) added that in order to test each individual unit a source would have to build a temporary testing system of stacks and ductwork to demonstrate initial compliance, and this temporary system would still not be suitable for demonstrating continuous compliance. The commenter contended that without expanding the testing to groups of boilers from different source categories venting to a common stack, the NESHAP would require a source to reconfigure its ductwork and build new stacks. One commenter approved of EPA's amendments to allow common stack performance testing under the circumstances provided in the proposed amendments. *Response:* We agree in part with the commenters' recommendation and have modified the rule to allow performance testing to be conducted at the end of stacks that receive emissions from boilers from different subcategories and nonaffected units in other NESHAP categories, as long as the emissions from these other units are stopped or redirected as described further below. However, we do not consider it appropriate to allow averaging of emissions from units in other subcategories or nonaffected units or consolidated testing of co-mingled emissions from units in other subcategories or nonaffected units. EPA has generally imposed limits on emissions averaging programs, which includes no averaging between emission units that are not part of the same source category. Since these units are generally subject to different emissions limitations, averaging or co-mingling of emissions would not provide a reliable demonstration of compliance with the applicable emissions limitation for those sources in a particular category or subcategory. Nevertheless, we do consider it appropriate under specified conditions described further below to allow testing at the end of the common stack for existing large solid fuel units at facilities with stack configurations that contain units from other subcategories ( *e.g.* , gas-fired units) and nonaffected units. EPA has established a clear and enforceable method for demonstrating initial, annual, and continuous compliance when units of different subcategories and nonaffected units vent to a common stack. Further, extending the common stack testing option to these stack configurations will not cause adverse effects to human health or the environment. The total emissions out of the stack will not increase as a result of this extension and compliance with the emission limits of each unit feeding the common stack will be determined by parametric limits on the control device through which the units vent to the common stack. Facilities that have common stack configurations consisting of units subject to the boiler NESHAP and units from other source categories also have the prerogative to petition for alternate testing and compliance plans on a site-specific basis. B. Compliance Testing and Monitoring *Comment:* Several commenters suggested an alternative methodology to meet the requirements of initial and annual compliance tests for units opting to use the emissions averaging provision. These commenters suggested that during the initial and subsequent annual compliance tests, all boilers venting to the common stack that are not subject to emission limits be turned off ( *i.e.* gas-fired units or nonaffected units). These commenters suggested that shutting down units of different subcategories or nonaffected units would satisfy the requirements of the boiler NESHAP. One commenter added that these methods will still provide reliable test data to the regulatory authorities to demonstrate compliance. One commenter added that since many large solid fuel units share a stack with gas-fired units, the NESHAP, as proposed in the notice of reconsideration, would require individual performance testing on each large solid fuel boiler, which would greatly increase the costs of testing compliance and increase system downtime. *Response:* We agree that turning off units from other subcategories ( *e.g.* , gas-fired units) and nonaffected units during the testing period, satisfies the requirements of the boiler NESHAP emissions averaging provision. Allowing the testing of a common stack, when units from other subcategories and nonaffected units are turned off satisfies the criteria that EPA has generally imposed on the scope and nature of emissions averaging programs. These criteria include:
(1)No averaging between different types of pollutants,
(2)no averaging between sources that are not part of the same major source,
(3)no averaging between sources within the same major source that are not subject to the same NESHAP, and
(4)no averaging between existing sources and new sources. The provision promulgated in this action only allows averaging of emissions from existing units in the large solid fuel subcategory. Emissions from units that are shut down or vented elsewhere during compliance testing are not included in the average or co-mingled with the emissions that are the focus of the test. Facilities that have common stack configurations, with units subject to the boiler NESHAP and nonaffected units, have the prerogative to petition for alternate testing and compliance plans on a site-specific basis. The type of testing discussed here is one example of an alternate testing and compliance plan that a facility would petition for on a site-specific basis. We have adjusted the rule language in 40 CFR 63.7522(h) to allow for shutting down units from other subcategories and nonaffected units to demonstrate compliance with the emissions averaging provision when units belonging to different subcategories of the boiler NESHAP and nonaffected units vent to the same stack as large solid fuel boilers. *Comment:* Two commenters suggested that parametric limits be set on all control devices used on solid fuel fired units and that these parametric limits be used to demonstrate continuous compliance with the emissions averaging provision of the boiler NESHAP. These commenters added that parametric limits on the control devices for existing large solid-fuel boilers would ensure that these control devices operated under the conditions established during the initial compliance test and provide a defensible way to demonstrate continuous compliance with the emissions averaging provision of the boiler NESHAP. One commenter suggested that parametric compliance limits be set on any control device in the group of units sharing a common stack, regardless of whether the conditions are wet or dry in the stack. *Response:* We agree that setting parametric limits on all control devices for existing large solid-fuel boilers venting to a common stack is an acceptable method for demonstrating continuous compliance with the emissions averaging provision of the boiler NESHAP. These parametric limits are a clear and enforceable method of demonstrating compliance. We have adjusted the rule language in 40 CFR 63.7541 to allow for a facility to demonstrate continuous compliance under the emissions averaging provision by using parametric limits on the control devices of existing large solid fuel units venting to a common stack. *Comment:* One commenter requested that EPA allow for a COMS at a common stack even when a source does not make use of the emissions averaging provision and opts to do performance testing on individual boilers. The commenter added that this regulatory flexibility will reduce compliance costs and maintain adequate levels of emissions monitoring. Two commenters requested that EPA clarify 40 CFR 63.7525(b) to allow a COMS to be located at the common stack, regardless of whether the group of boilers sharing a common stack consists of boilers of different subcategories. One commenter suggested that it did not believe EPA intended to require a COMS on individual units sharing a common stack. The commenter added that it is impractical, due to a lack of space or adequate location, to install individual COMS monitors in the duct work for groups of boilers that share a common stack. The commenter cites 40 CFR part 60, appendix B, Performance Specification (PS)-1, to reference that in many cases this requirement has been satisfied by placing a COMS on the common stack. One commenter suggested that language be added to 40 CFR 63.7522(j)(3) to indicate that a COMS monitor is required at a common stack, even when each individual boiler unit has a separate opacity operating limit. The commenter is concerned that without additional language, 40 CFR 63.7522(j)(3) could be misinterpreted to require a COMS in each duct leading to the common stack. The commenter noted that although there is discussion of this intent in the preamble (70 FR 62268), the commenter suggested that there be language added to this effect in the actual rule text. The commenter also suggested that language be added to 40 CFR 63.7541(a)(2) to clarify that a single COMS monitor for a group of units that each vents through a unique control system and then to a common stack. The commenter suggested this language is necessary so that this group of units is treated similarly to a group of units venting through a common control device to a common stack with respect to the requirements of a COMS. *Response:* We agree with these suggestions as long as all units feeding the common stack are in the existing large solid fuel subcategory. The emissions averaging provision was intended to be an option for affected facilities to allow for increased regulatory flexibility. We reiterate here that if a source chooses to do performance testing for HAP emissions at each individual unit, the source is still eligible to locate a COMS monitor on the common stack as long as all the units feeding the common stack are in the existing large solid fuel subcategory. We disagree with the commenter's suggestion to allow for a COMS monitor to be located at the common stack when groups of boilers from different affected subcategories or nonaffected units are feeding the stack. We also disagree with allowing a single COMS unit to be placed on the common stack if the units feeding the common stack belong to other source categories. C. Definitions *Comment:* Several commenters requested that EPA modify the definitions of firetube and watertube boilers to account for hybrid boilers. The commenters suggested that EPA make the distinction between the two units based on the location of the containment or steam separation system in the unit in order to clarify the basic difference between fire tube and water tube units. Three commenters added that water tube units incorporate a steam drum, which provides for steam separation from water, whereas a fire tube unit uses a containment shell, inside which the water vaporizes and steam separates. One commenter suggested that a water tube boiler be defined as a boiler that has a water tube type of steam drum, with no additional heat exchange surface in the form of fire tubes running through the drum. The commenter suggested that a fire tube boiler be defined as any hybrid type of boiler where steam separation takes place in a vessel that also contains fire tubes that provide the major heat input to the water. The commenter added that this approach will simplify interpretation of this definition. Two commenters requested that EPA adopt the following addition to the definition of firetube boiler to account for hybrid boilers: “All owners or operators of hybrid boilers that have been registered/certified by the National Board of Boiler and Pressure Vessel Inspectors and/or the State as firetube boilers as indicated by “Form P-2” (Manufacturers Data Report For All Types of Boilers Except Watertube and Electric As Required by the Provisions of the American Society of Mechanical Engineers
(ASME)Code Rules, Section I) shall be considered small units for the purpose of this subpart.” *Response:* We agree with the distinction between a firetube and watertube boiler using the criteria of whether a unit has a containment shell or a steam drum. We consider the ASME Code Rules and Forms to be an acceptable and established method for classifying vessel types. We have modified the proposed definitions of watertube and firetube boilers to allow a facility to classify its hybrid vessel by one of two methods:
(1)Determining whether or not the unit has a steam drum or containment system, or
(2)the indication of firetube boiler on the ASME P-2 form. *Comment:* Two commenters requested that the definition for large gaseous fuel units be changed to allow for units to combust oil during periods of natural gas supply emergencies or natural gas curtailment. The commenters added that if the unit combusts oil for periodic testing under these circumstances, this unit should not be automatically categorized in the large oil fuel subcategory. *Response:* We agree that it is necessary for gas-fired units that are designed for combusting oil during periods of natural gas curtailment to periodically tune the unit for proper oil firing and combustion to be prepared for such periods. Based on review of current regulations in California regarding equipment testing of non-gaseous fuel, periodic testing of oil is allowed for a combined total of 48 hours during any calendar year. This periodic testing for up to 48 hours, which is in addition to periods of combusting oil during natural gas curtailment, will not cause a boiler to be categorized in the oil fuel subcategories. We have amended the definitions to clarify that gas boilers that fire liquid fuel for the purposes of periodic testing are not included in the liquid fuel subcategories. D. Testing Methods *Comment:* Several commenters requested that EPA list some specific examples of equivalent methods in Table 6 to subpart DDDDD. The commenters specifically added that since the promulgation of the NESHAP, EPA has received and approved many site-specific requests for the use “equivalent” methods. The commenters requested that any approved methods be added to Table 6. Another commenter disagreed with deleting test method ASTM D3684-01 from Table 6 to subpart DDDDD. The commenter added that this test method should be retained in Table 6, and the final revised table should indicate that this test method is applicable for determining both arsenic and selenium. Two commenters requested that the latest revisions of following test methods be listed in Table 6 to subpart DDDDD: ASTM D3684 for coal mercury analysis, ASTM D3683 for coal total selected metals, and ASTM D4208 for coal chlorine content. These commenters added that these methods have a long history as established standard methods. By adding these methods to Table 6, sources or testing companies would not have to petition for approval of these established methods. These commenters also added that many coal chlorine levels exceed the upper bound (1136 parts per million) on the concentration range for repeatability and reproducibility on ASTM D6721, and that ASTM D4208 is a more appropriate testing method on coals with high chlorine concentrations. Two commenters recommended that EPA provide authority to the States for approving equivalent testing methods that have already been accepted by EPA on multiple similar site-specific requests. The commenters added that providing authority to the States is an efficient way to determine approved equivalent testing methods. *Response:* With this action, we have clarified the definition of equivalent method. Equivalent methods are voluntary consensus standards
(VCS)or EPA methods which are applicable to the fuel type or target analyte being measured. Although we disagree with adding a complete list of equivalent methods already approved to the final rule itself, we have provided a list of these previously approved methods in the preamble to the final rule. We have also added a definition of VCS to the final rule to help clarify what equivalent methods are. Equivalent methods may be used in lieu of the prescribed methods in Table 6 to subpart DDDDD at the discretion of the source owner or operator. Therefore, publishing a list of or adding to the list of approved methods is not necessary. Similarly, State or EPA approval of equivalent methods is not necessary. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it is likely to raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget
(OMB)for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This final action imposes no new information collection requirements on the industry. Because there is no additional burden on the industry as a result of the final rule amendments, the information collection request has not been revised. OMB has previously approved the information collection requirements contained in the existing regulations under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* , and has assigned OMB control number 2060-0551 (EPA No. 2028.02). A copy of the OMB approved Information Collection Request
(ICR)may be obtained from Susan Auby, Collection Strategies Division, U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act 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 impact of this final rule on small entities, a small entity is defined as:
(1)A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, country, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and that is not dominant in its field. After considering the economic impacts of this final rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. EPA has determined that none of the small entities will experience a significant impact because the final rule imposes no additional regulatory requirements on owners or operators of affected sources. 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 section, 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, for least-burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed, under section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA's regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this final rule 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. Although the original NESHAP had annualized costs estimated to range from $690 to $860 million (depending on the number of facilities eventually demonstrating eligibility for the health-based compliance alternatives), this final rule does not add new requirements that would increase this cost. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, EPA has determined that this final rule does not significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, this final rule is not subject to section 203 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The requirements discussed in this action will not supersede State regulations that are more stringent. Thus, Executive Order 13132 does not apply to this 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 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 the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. No affected facilities are owned or operated by Indian tribal governments. Thus, Executive Order 13175 does not apply to this 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 EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by EPA. This final rule is not subject to the Executive Order because EPA does not have reason to feel that the environmental health or safety risks associated with the emissions addressed by this action presents a disproportionate risk to children. This demonstration is based on the fact that this action does not affect the emissions limits contained in this final rule. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This final rule is not a “significant energy actions” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this action is not likely to have any adverse energy effect. I. National Technology Transfer and Advancement Act As noted in the final rule, section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards ( *e.g.* , material specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA requires EPA to provide Congress, through the OMB, with explanations when EPA decides not to use available and applicable voluntary consensus standards. This action involves technical standards. During the development of this final rule, EPA searched for voluntary consensus standards that might be applicable. EPA adopted the following standards in this final rule:
(1)ASTM D2013-04, “Standard Practice for Preparing Coal Samples for Analysis,”
(2)ASTM D2234-D2234M-03E01, “Standard Practice for Collection of a Gross Sample of Coal,”
(3)ASTM D6721-01, “Standard Test Method for Determination of Chlorine in Coal by Oxidative Hydroylsis Microcoulometry,”
(4)ASTM D3173-03, “Standard Test Method for Moisture in the Analysis Sample of Coal and Coke,”
(5)ASTM D4606-03, “Standard Test Method for Determination of Arsenic and Selenium in Coal by the Hydride Generation/Atomic Absorption Method,”
(6)ASTM D6357-04, “Standard Test Methods for Determination of Trace Elements in Coal, Coke, and Combustion Residues from Coal Utilization Processes by Inductively Coupled Plasma Atomic Emission Spectrometry, Inductively Coupled Plasma Mass Spectrometry, and Graphite Furnace Atomic Absorption Spectrometry,”
(7)ASTM D6722-01, “Standard Test Method for Total Mercury in Coal and Coal Combustion Residues by the Direct Combustion Analysis,” and
(8)ASTM D5865-04, “Standard Test Method for Gross Calorific Value of Coal and Coke.” Table 6 to subpart DDDDD of 40 CFR part 63 lists the fuel analysis methods included in this final rule. Under 40 CFR 63.7(f) in subpart A of the General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures. 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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This final rule will be effective February 5, 2007. List of Subjects in 40 CFR Part 63 Environmental protection, Administrative practice and procedures, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: November 30, 2006. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter 1 of the code of Federal Regulations is amended to read as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart A—[Amended] 2. Section 63.14 is amended by adding paragraphs (b)(55) through
(62)to read as follows: § 63.14 Incorporation by reference.
(b)* * *
(55)ASTM D2013-04, Standard Practice for Preparing Coal Samples for Analysis, IBR approved for Table 6 to subpart DDDDD of this part.
(56)ASTM D2234-D2234M-03 €1 , Standard Practice for Collection of a Gross Sample of Coal, IBR approved for Table 6 to subpart DDDDD of this part.
(57)ASTM D6721-01, Standard Test Method for Determination of Chlorine in Coal by Oxidative Hydrolysis Microcoulometry, IBR approved for Table 6 to subpart DDDDD of this part.
(58)ASTM D3173-03, Standard Test Method for Moisture in the Analysis Sample of Coal and Coke, IBR approved for Table 6 to subpart DDDDD of this part.
(59)ASTM D4606-03, Standard Test Method for Determination of Arsenic and Selenium in Coal by the Hydride Generation/Atomic Absorption Method, IBR approved for Table 6 to subpart DDDDD of this part.
(60)ASTM D6357-04, Standard Test Methods for Determination of Trace Elements in Coal, Coke, and Combustion Residues from Coal Utilization Processes by Inductively Coupled Plasma Atomic Emission Spectrometry, Inductively Coupled Plasma Mass Spectrometry, and Graphite Furnace Atomic Absorption Spectrometry, IBR approved for Table 6 to subpart DDDDD of this part.
(61)ASTM D6722-01, Standard Test Method for Total Mercury in Coal and Coal Combustion Residues by the Direct Combustion Analysis, IBR approved for Table 6 to subpart DDDDD of this part.
(62)ASTM D5865-04, Standard Test Method for Gross Calorific Value of Coal and Coke, IBR approved for Table 6 to subpart DDDDD of this part. Subpart DDDDD—[Amended] 3. Section 63.7491 is amended by revising paragraph
(c)to read as follows: § 63.7491 Are any boilers or process heaters not subject to this subpart?
(c)An electric utility steam generating unit (including a unit covered by 40 CFR part 60, subpart Da) or a Mercury
(Hg)Budget unit covered by 40 CFR part 60, subpart HHHH. 4. Section 63.7510 is amended by revising paragraph
(a)to read as follows: § 63.7510 What are my initial compliance requirements and by what date must I conduct them?
(a)For affected sources that elect to demonstrate compliance with any of the emission limits of this subpart through performance testing, your initial compliance requirements include conducting performance tests according to § 63.7520 and Table 5 to this subpart, conducting a fuel analysis for each type of fuel burned in your boiler or process heater according to § 63.7521 and Table 6 to this subpart, establishing operating limits according to § 63.7530 and Table 7 to this subpart, and conducting CMS performance evaluations according to § 63.7525. For affected sources that burn a single type of fuel, you are exempted from the initial compliance requirements of conducting a fuel analysis for each type of fuel burned in your boiler or process heater according to § 63.7521 and Table 6 to this subpart. 5. Section 63.7522 is amended as follows: a. By revising paragraph (b), b. By revising paragraph (c), c. By revising paragraph (d), d. By revising paragraph (e), e. By revising paragraph (f), and f. By adding paragraphs
(h)through (k). § 63.7522 Can I use emission averaging to comply with this subpart?
(b)Separate stack requirements. For a group of two or more existing large solid fuel boilers that each vent to a separate stack, you may average particulate matter or TSM, HCl and mercury emissions to demonstrate compliance with the limits in Table 1 to this subpart if you satisfy the requirements in paragraphs (c), (d), (e), (f), and
(g)of this section.
(c)For each existing large solid fuel boiler in the averaging group, the emission rate achieved during the initial compliance test for the HAP being averaged must not exceed the emission level that was being achieved on November 12, 2004 or the control technology employed during the initial compliance test must not be less effective for the HAP being averaged than the control technology employed on November 12, 2004.
(d)The emissions rate from the existing large solid fuel boilers participating in the emissions averaging option must be in compliance with the limits in Table 1 to this subpart at all times following the compliance date specified in § 63.7495.
(e)You must demonstrate initial compliance according to paragraph (e)(1) or
(2)of this section.
(1)You must use Equation 1 of this section to demonstrate that the particulate matter or TSM, HCl, and mercury emissions from all existing large solid fuel boilers participating in the emissions averaging option do not exceed the emission limits in Table 1 to this subpart. ER06DE06.001 Where: Ave Weighted Emissions = Average weighted emissions for particulate matter or TSM, HCl, or mercury, in units of pounds per million Btu of heat input. Er = Emission rate (as calculated according to Table 5 to this subpart or by fuel analysis (as calculated by the applicable equation in § 63.7530(d))) for boiler, i, for particulate matter or TSM, HCl, or mercury, in units of pounds per million Btu of heat input. Hm = Maximum rated heat input capacity of boiler, i, in units of million Btu per hour. n = Number of large solid fuel boilers participating in the emissions averaging option.
(2)If you are not capable of monitoring heat input, you may use Equation 2 of this section as an alternative to using Equation 1 of this section to demonstrate that the particulate matter or TSM, HCl, and mercury emissions from all existing large solid fuel boilers participating in the emissions averaging option do not exceed the emission limits in Table 1 to this subpart. ER06DE06.002 Where: Ave Weighted Emissions = Average weighted emission level for PM or TSM, HCl, or mercury, in units of pounds per million Btu of heat input. Er = Emission rate (as calculated according to Table 5 to this subpart or by fuel analysis (as calculated by the applicable equation in § 63.7530(d))) for boiler, i, for particulate matter or TSM, HCl, or mercury, in units of pounds per million Btu of heat input. Sm = Maximum steam generation by boiler, i, in units of pounds. Cf = Conversion factor, calculated from the most recent compliance test, in units of million Btu of heat input per pounds of steam generated.
(f)You must demonstrate continuous compliance on a monthly basis determined at the end of every month (12 times per year) according to paragraphs (f)(1) through
(3)of this section. The first monthly period begins on the compliance date specified in § 63.7495.
(1)For each calendar month, you must use Equation 3 of this section to calculate the monthly average weighted emission rate using the actual heat capacity for each existing large solid fuel boiler participating in the emissions averaging option. ER06DE06.003 Where: Ave Weighted Emissions = monthly average weighted emission level for particulate matter or TSM, HCl, or mercury, in units of pounds per million Btu of heat input. Er = Emission rate, (as calculated during the most recent compliance test, (as calculated according to Table 5 to this subpart) or fuel analysis (as calculated by the applicable equation in § 63.7530(d)) for boiler, i, for particulate matter or TSM, HCl, or mercury, in units of pounds per million Btu of heat input. Hb = The average heat input for each calendar month of boiler, i, in units of million Btu. n = Number of large solid fuel boilers participating in the emissions averaging option.
(2)If you are not capable of monitoring heat input, you may use Equation 4 of this section as an alternative to using Equation 3 of this section to calculate the monthly weighted emission rate using the actual steam generation from the large solid fuel boilers participating in the emissions averaging option. ER06DE06.004 Where: Ave Weighted Emissions = monthly average weighted emission level for PM or TSM, HCl, or mercury, in units of pounds per million Btu of heat input. Er = Emission rate, (as calculated during the most recent compliance test (as calculated according to Table 5 to this subpart) or by fuel analysis (as calculated by the applicable equation in § 63.7530(d))) for boiler, i, for particulate matter or TSM, HCl, or mercury, in units of pounds per million Btu of heat input. Sa = Actual steam generation for each calendar month by boiler, i, in units of pounds. Cf = Conversion factor, as calculated during the most recent compliance test, in units of million Btu of heat input per pounds of steam generated.
(3)Until 12 monthly weighted average emission rates have been accumulated, calculate and report only the monthly average weighted emission rate determined under paragraph (f)(1) or
(2)of this section. After 12 monthly weighted average emission rates have been accumulated, for each subsequent calendar month, use Equation 4A of this section to calculate the 12-month rolling average of the monthly weighted average emission rates for the current month and the previous 11 months. ER06DE06.005 Where: Eavg = 12-month rolling average emission rate, (pounds per million Btu heat input) ERi = Monthly weighted average, for month “i”, (pounds per million Btu heat input)(as calculated by (f)(1) or (2))
(h)Common stack requirements. For a group of two or more existing large solid fuel boilers, each of which vents through a single common stack, you may average particulate matter or TSM, HCl and mercury to demonstrate compliance with the limits in Table 1 to this subpart if you satisfy the requirements in paragraph
(i)or
(j)of this section.
(i)For a group of two or more existing large solid fuel boilers, each of which vents through a common emissions control system to a common stack, that does not receive emissions from units in other subcategories or categories, you may treat such averaging group as a single existing solid fuel boiler for purposes of this subpart and comply with the requirements of this subpart as if the group were a single boiler.
(j)For all other groups of boilers subject to paragraph
(h)of this section, the owner or operator may elect to:
(1)Conduct performance tests according to procedures specified in § 63.7520 in the common stack (if affected units from other subcategories ( *e.g.* , gas-fired units) or nonaffected units vent to the common stack, the units from other subcategories and nonaffected units must be shut down or vented to a different stack during the performance test); and
(2)Meet the applicable operating limit specified in § 63.7540 and Table 8 to this subpart for each emissions control system (except that, if each boiler venting to the common stack has an applicable opacity operating limit, then a single continuous opacity monitoring system may be located in the common stack instead of in each duct to the common stack).
(k)*Combination requirements.* The common stack of a group of two or more boilers subject to paragraph
(h)of this section may be treated as a separate stack for purposes of paragraph
(b)of this section and included in an emissions averaging group subject to paragraph
(b)of this section. 6. Section 63.7525 is amended by revising paragraphs
(a)introductory text and (a)(1) to read as follows: § 63.7525 What are my monitoring, installation, operation, and maintenance requirements?
(a)If you have an applicable work practice standard for carbon monoxide, and your boiler or process heater is in any of the large subcategories and has a heat input capacity of 100 MMBtu per hour or greater, you must install, operate, and maintain a continuous emission monitoring system
(CEMS)for carbon monoxide and oxygen according to the procedures in paragraphs (a)(1) through
(6)of this section by the compliance date specified in § 63.7495. The carbon monoxide and oxygen shall be monitored at the same location at the outlet of the boiler or process heater.
(1)Each CEMS must be installed, operated, and maintained according to the applicable procedures under Performance Specification
(PS)3 or 4A of 40 CFR part 60, appendix B, and according to the site-specific monitoring plan developed according to § 63.7505(d). 7. Section 63.7540 is amended by revising paragraph (a)(4) to read as follows: § 63.7540 How do I demonstrate continuous compliance with the emission limits and work practice standards?
(a)* * *
(4)If you demonstrate compliance with an applicable HCl emission limit through performance testing and you plan to burn a new type of fuel or a new mixture of fuels, you must recalculate the maximum chlorine input using Equation 5 of § 63.7530. If the results of recalculating the maximum chlorine input using Equation 5 of § 63.7530 are higher than the maximum chlorine input level established during the previous performance test, then you must conduct a new performance test within 60 days of burning the new fuel type or fuel mixture according to the procedures in § 63.7520 to demonstrate that the HCl emissions do not exceed the emission limit. You must also establish new operating limits based on this performance test according to the procedures in § 63.7530(c). 8. Section 63.7541 is amended as follows: a. By revising paragraph
(a)introductory text, b. By revising paragraph (a)(2), c. By adding paragraph (a)(5), and d. By revising paragraph (b). § 63.7541 How do I demonstrate continuous compliance under the emission averaging provision?
(a)Following the compliance date, the owner or operator must demonstrate compliance with this subpart on a continuous basis by meeting the requirements of paragraphs (a)(1) through
(5)of this section.
(2)You must maintain the applicable opacity limit according to paragraphs (a)(2)(i) through
(ii)of this section.
(i)For each existing solid fuel boiler participating in the emissions averaging option that is equipped with a dry control system and not vented to a common stack, maintain opacity at or below the applicable limit.
(ii)For each group of boilers participating in the emissions averaging option where each boiler in the group is an existing solid fuel boiler equipped with a dry control system and vented to a common stack that does not receive emissions from affected units from other subcategories or nonaffected units, maintain opacity at or below the applicable limit at the common stack;
(5)For each existing large solid fuel boiler participating in the emissions averaging option venting to a common stack configuration containing affected units from other subcategories and/or nonaffected units, maintain the appropriate operating limit for each unit as specified in Tables 2 through 4 to this subpart that applies.
(b)Any instance where the owner or operator fails to comply with the continuous monitoring requirements in paragraphs (a)(1) through
(5)of this section, except during periods of startup, shutdown, and malfunction, is a deviation. 9. Section 63.7575 is amended as follows: a. By revising the definitions for “Firetube boiler,” “Fuel type,” “Large gaseous fuel subcategory,” “Large liquid fuel subcategory,” “Large solid fuel subcategory,” “Small gaseous fuel subcategory,” “Small liquid fuel subcategory,” “Watertube boiler,” and b. By adding definitions for “Common Stack,” “Equivalent,” and “Voluntary Consensus Standard” in alphabetical order. § 63.7575 What definitions apply to this subpart? *Common Stack* means the exhaust of emissions from two or more affected units through a single flue. *Equivalent* means the following only as this term is used in Table 6 to subpart DDDDD:
(1)An equivalent sample collection procedure means a published voluntary consensus standard or practice
(VCS)or EPA method that includes collection of a minimum of three composite fuel samples, with each composite consisting of a minimum of three increments collected at approximately equal intervals over the test period.
(2)An equivalent sample compositing procedure means a published VCS or EPA method to systematically mix and obtain a representative subsample
(part)of the composite sample.
(3)An equivalent sample preparation procedure means a published VCS or EPA method that: Clearly states that the standard, practice or method is appropriate for the pollutant and the fuel matrix; or is cited as an appropriate sample preparation standard, practice or method for the pollutant in the chosen VCS or EPA determinative or analytical method.
(4)An equivalent procedure for determining heat content means a published VCS or EPA method to obtain gross calorific (or higher heating) value.
(5)An equivalent procedure for determining fuel moisture content means a published VCS or EPA method to obtain moisture content. If the sample analysis plan calls for determining metals (especially the mercury, selenium, or arsenic) using an aliquot of the dried sample, then the drying temperature must be modified to prevent vaporizing these metals. On the other hand, if metals analysis is done on an “as received” basis, a separate aliquot can be dried to determine moisture content and the metals concentration mathematically adjusted to a dry basis.
(6)An equivalent pollutant (mercury, TSM, or total chlorine) determinative or analytical procedure means a published VCS or EPA method that clearly states that the standard, practice, or method is appropriate for the pollutant and the fuel matrix and has a published detection limit equal or lower than the methods listed in Table 6 to subpart DDDDD for the same purpose. *Firetube boiler* means a boiler that utilizes a containment shell that encloses firetubes (tubes in a boiler having water on the outside and carrying the hot gases of combustion inside), and allows the water to vaporize and steam to separate. Hybrid boilers that have been registered/certified by the National Board of Boiler and Pressure Vessel Inspectors and/or the State as firetube boilers as indicated by “Form P-2” (Manufacturers' Data Report for All Types of Boilers Except Watertube and Electric, As Required by the Provisions of the ASME Code Rules, Section I), are considered to be firetube boilers for the purpose of this subpart. *Fuel type* means each category of fuels that share a common name or classification. Examples include, but are not limited to, bituminous coal, subbituminous coal, lignite, anthracite, biomass, construction/demolition material, salt water laden wood, creosote treated wood, tires, residual oil. Individual fuel types received from different suppliers are not considered new fuel types except for construction/demolition material. Contraband, prohibited goods, or retired U.S. flags, burned at the request of a government agency, are not considered a fuel type for the purpose of this subpart. *Large gaseous fuel subcategory* includes any watertube boiler or process heater that burns gaseous fuels not combined with any solid fuels, burns liquid fuel only during periods of gas curtailment, gas supply emergencies, or for periodic testing of liquid fuel, has a rated capacity of greater than 10 MMBtu per hour heat input, and does not have a federally enforceable annual average capacity factor of equal to or less than 10 percent. Periodic testing of liquid fuel is not to exceed a combined total of 48 hours during any calendar year. *Large liquid fuel subcategory* includes any watertube boiler or process heater that does not burn any solid fuel and burns any liquid fuel either alone or in combination with gaseous fuels, has a rated capacity of greater than 10 MMBtu per hour heat input, and does not have a federally enforceable annual average capacity factor of equal to or less than 10 percent. Large gaseous fuel boilers and process heaters that burn liquid fuel during periods of gas curtailment, gas supply emergencies or for periodic testing of liquid fuel not to exceed a combined total of 48 hours during any calendar year are not included in this definition. *Large solid fuel subcategory* includes any watertube boiler or process heater that burns any amount of solid fuel either alone or in combination with liquid or gaseous fuels, has a rated capacity of greater than 10 MMBtu per hour heat input, and does not have a federally enforceable annual average capacity factor of equal to or less than 10 percent. *Small gaseous fuel subcategory* includes any size of firetube boiler and any other boiler or process heater with a rated capacity of less than or equal to 10 MMBtu per hour heat input that burn gaseous fuels not combined with any solid fuels and burns liquid fuel only during periods of gas curtailment, gas supply emergencies, or for periodic testing of liquid fuel. Periodic testing is not to exceed a combined total of 48 hours during any calendar year. *Small liquid fuel subcategory* includes any size of firetube boiler and any other boiler or process with a rated capacity of less than or equal to 10 MMBtu per hour heat input that do not burn any solid fuel and burn any liquid fuel either alone or in combination with gaseous fuels. Small gaseous fuel boilers and process heaters that burn liquid fuel during periods of gas curtailment, gas supply emergencies or for periodic testing of liquid fuel not to exceed a combined total of 48 hours during any calendar year are not included in this definition. *Watertube boiler* means a boiler that incorporates a steam drum with tubes connected to the drum to separate steam from water. *Voluntary Consensus Standards or VCS* mean technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. EPA/OAQPS has by precedent only used VCS that are written in English. Examples of VCS bodies are: American Society of Testing and Materials (ASTM), American Society of Mechanical Engineers (ASME), International Standards Organization (ISO), Standards Australia (AS), British Standards (BS), Canadian Standards (CSA), European Standard (EN or CEN) and German Engineering Standards (VDI). The types of standards that are not considered VCS are standards developed by: the U.S. states, *e.g.* , California
(CARB)and Texas (TCEQ); industry groups, such as American Petroleum Institute (API), Gas Processors Association (GPA), and Gas Research Institute (GRI); and other branches of the U.S. government, *e.g.* Department of Defense
(DOD)and Department of Transportation (DOT). This does not preclude EPA from using standards developed by groups that are not VCS bodies within their rule. When this occurs, EPA has done searches and reviews for VCS equivalent to these non-EPA methods. 10. Table 6 and text before table to subpart DDDDD are revised to read as follows: As stated in § 63.7521, you must comply with the following requirements for fuel analysis testing for existing, new or reconstructed affected sources. However, equivalent methods may be used in lieu of the prescribed methods at the discretion of the source owner or operator: Table 6.—To Subpart DDDDD of Part 63—Fuel Analysis Requirements To conduct a fuel analysis for the following pollutant * * * You must * * * Using * * * 1. Mercury * * * a. Collect fuel samples * * * Procedure in § 63.7521(c) or ASTM D2234-D2234M-03 €1 (for coal) (IBR, see § 63.14(b)) or ASTM D6323-98
(2003)(for biomass) (IBR, See § 63.14(b)) or equivalent. b. Composite fuel samples * * * Procedure in § 63.7521(d) or equivalent. c. Prepare composited fuel samples * * * SW-846-3050B (for solid samples) or SW-846-3020A (for liquid samples) or ASTM D2013-04 (for coal) (IBR, see § 63.14(b)) or ASTM D5198-92
(2003)(for biomass) (IBR, see § 63.14(b)) or equivalent. d. Determine heat content of the fuel type * * * ASTM D5865-04 (for coal) (IBR, see § 63.24(b)) or ASTM E711-87 (for biomass) (IBR, see § 63.14(b)) or equivalent. e. Determine moisture content of the fuel type * * * ASTM D3173-03 (IBR, see § 63.14(b)) or ASTM E871-82
(1998)(IBR, see § 63.14(b)) or equivalent. f. Measure mercury concentration in fuel sample * * * ASTM D6722-01 (for coal) (IBR, see § 6314(b)) or SW-846-7471A (for solid samples) or SW-846-7470A (for liquid samples or equivalent. g. Convert concentration into units of pounds of pollutant per MMBtu of heat content. 2. Total Selected metals * * * a. Collect fuel samples * * * Procedure in § 63.7521(c) or ASTM D2234-D2234M-03 €1 (for coal) (IBR, see § 63.14(b)) or ASTM D6323-98
(2003)(for biomass) (IBR, see § 63.14(b)) or equivalent. b. Composite fuel samples * * * Procedure in § 63.7521(d) or equivalent. c. Prepare composited fuel samples * * * SW-846-3050B (for solid samples) or SW-846-3020A (for liquid samples) or ASTM D2013-04 (for coal) (IBR, see § 63.14(b)) or ASTM D5198-92
(2003)(for biomass (IBR, see § 63.14(b)) or equivalent. d. Determine heat content of the fuel type * * * ASTM D5865-04 (for coal) (IBR, see § 63.14(b)) or ASTM E711-87 (for biomass) (IBR, see § 63.14(b)) or equivalent. e. Determine moisture content of the fuel type * * * ASTM D3173-03 (IBR, see § 63.14(b)) or ASTM E871-82 (IBR, see § 63.14(b)) or equivalent. f. Measure total selected metals concentration in fuel sample * * * SW-846-6010B or ASTM D6357-04 (for arsenic, beryllium, cadmium, chromium, lead, manganese, and nickel for all solid fuels) and ASTM D4606-03 (for selenium in coal) (IBR, see § 63.14(b)) or ASTM E885-88
(1996)for biomass) (IBR, see § 63.14(b)) or equivalent. g. Convert concentrations into units of pounds of pollutant per MMBtu of heat content. 3. Hydrogen Chloride * * * a. Collect fuel samples * * * Procedure in § 63.7521(c) or ASTM D2234-D2234M-03 €1 (for coal) (IBR, see § 63.14(b)) or ASTM D6323-98
(2003)(for biomass) (IBR, see § 63.14(b)) or equivalent. b. Composite fuel samples * * * Procedure in § 63.7521(d) or equivalent. c. Prepare composited fuel samples * * * SW-846-3050B (for solid samples) or SW-846-3020A (for liquid samples) or ASTM D2013-04 (for coal) (IBR, see § 63.14(b)) or ASTM D5198-92
(2003)(for biomass) (IBR, see § 63.14(b)) or equivalent. d. Determine heat content of the fuel type * * * ASTM D5865-04 (for coal) (IBR, see § 63.14(b)) or ASTM E711-87
(1996)(for biomass) (IBR, see § 63.14(b)) or equivalent. e. Determine moisture content of the fuel type * * * ASTM D3173-03 (IBR, see § 63.14(b)) or ASTM E871-82
(1998)or equivalent. f. Measure chlorine concentration in fuel sample * * * SW-846-9250 or ASTM D6721-01 (for coal) or ASTM E776-87
(1996)(for biomass) (IBR, see § 63.14(b)) or equivalent. g. Convert concentrations into units of pounds of pollutant per MMBtu of heat content. [FR Doc. E6-20637 Filed 12-5-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [FDMS Docket No. EPA-R03-OAR-2006-0933; FRL-8252-3] State Operating Permit Programs; Delaware; Amendments to the Definition of a “Major Source” AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to amend the State of Delaware's operating permit program to correct the definition of “major source.” Delaware's revision was submitted in response to the Clean Air Act
(CAA)Amendments of 1990 that required States to submit to EPA program revisions in accordance with the Federal Title V regulations. The EPA granted final approval of Delaware's operating permit program on November 19, 2001. Delaware amended its operating permit program to address the Federal EPA amendment to the Federal Title V regulation, which went into effect on November 27, 2001, and this action approves this amendment. Any parties interested in commenting on this action granting approval of Delaware's amendment to the Title V operating permit program should do so at this time. DATES: This rule is effective on February 5, 2007 without further notice, unless EPA receives adverse written comment by January 5, 2007. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0933 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. B. E-mail: *campbell.dave@epa.gov.* C. Mail: EPA-R03-OAR-2006-0933, David Campbell, Chief, Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2006-0933. 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 *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your 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 *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 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 Delaware Department of Natural Resources & Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903. FOR FURTHER INFORMATION CONTACT: Rosemarie Nino,
(215)814-3377, or by e-mail at *nino.rose@epa.gov.* SUPPLEMENTARY INFORMATION: On May 18, 2004, the State of Delaware submitted an amendment to its State operating permit program. This amendment is the subject of this document and this section provides additional information on the amendment by addressing the following questions: *What Is the State Operating Permit Program?* *What Are the State Operating Permit Program Requirements?* *What Is Being Addressed in This Document?* *What Is Not Being Addressed in This Document?* *What Changes to Delaware's Operating Permit Program Is EPA Approving?* *What Action Is Being Taken by EPA?* What Is the State Operating Permit Program? The Clean Air Act Amendments of 1990 required all States to develop operating permit programs that meet certain Federal criteria. When implementing the operating permit programs, the States require certain sources of air pollution to obtain permits that contain all of their applicable requirements under the Clean Air Act (CAA). The focus of the operating permit program is to improve enforcement by issuing each source a permit that consolidates all of its applicable CAA requirements into a Federally-enforceable document. By consolidating all of the applicable requirements for a given air pollution source into an operating permit, the source, the public, and the State environmental agency can more easily understand what CAA requirements apply and how compliance with those requirements is determined. Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in EPA's implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain operating permits. Examples of “major” sources include those that have the potential to emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen oxides, or particulate matter (PM <sup>10</sup> and PM <sup>2.5</sup> ); those that emit 10 tons per year of any single hazardous air pollutant
(HAP)specifically listed under the CAA; or those that emit 25 tons per year or more of a combination of HAPs. In areas that are not meeting the national ambient air quality standards (NAAQS) for ozone, carbon monoxide, or particulate matter, major sources are defined by the gravity of the nonattainment classification. What Are the State Operating Permit Program Requirements? The minimum program elements for an approvable operating permit program are those mandated by Title V of the Clean Air Act Amendments of 1990 and established by EPA's implementing regulations at title 40, part 70—“State Operating Permit Programs” in the Code of Federal Regulations (40 CFR part 70). Title V required state and local air pollution control agencies to develop operating permit programs and submit them to EPA for approval by November 15, 1993. Under Title V, State and local air pollution control agencies that implement operating permit programs are called “permitting authorities”. The State was granted final full approval effective on November 19, 2001. On May 18, 2004, Delaware submitted an amendment to its currently EPA-approved Title V operating permit program. In general, Delaware amended its operating permit program regulations to make the current definition of a “major source” as stringent as the corresponding provision of 40 CFR Part 70, which went into effect on November 27, 2001. This change will make this aspect of Regulation No. 30 consistent with the Federal rule. What Is Being Addressed in This Document? This action approves an amendment to the Delaware Title V operating permit program to correct the definition of a “major source.” This amendment would change the definition of “a major source” by removing the phrase “but only with respect to those air pollutants that have been regulated for that category” from the Regulation 30 (Title V) definition of a major source as it applies to Federal standards. What Is Not Being Addressed in This Document? EPA is not opening the entirety of Delaware's Title V operating permit program up to public comment, we are only addressing this change to the definition of “major source”. What Changes to Delaware's Program Is EPA Approving? Delaware has revised Regulation 30, Section 2—Definitions, of the State of Delaware Regulations Governing the Control of Air Pollution to be consistent with the provision of 40 CFR 70.2. This action is necessary because the current definition is less stringent than the corresponding provision of 40 CFR part 70, which went into effect on November 27, 2001. Change to Delaware's Program That Corrects a Deficiency The EPA has reviewed Delaware's May 18, 2004 program amendment in conjunction with the portion of Delaware's program that was earlier approved. Based on this review, EPA is granting full approval of Delaware's amended operating permit program. The EPA has determined that this amendment to Delaware's operating permit program adequately addresses the deficiency. Delaware's operating permit program, including this amendment submitted on May 18, 2004, fully meets the minimum requirements of 40 CFR part 70. What Action Is Being Taken by EPA? The State of Delaware has satisfactorily addressed a program deficiency when EPA made a change to the Federal rule. The operating permit program amendment that is the subject of this document considered together with that portion of Delaware's operating permit program that was earlier approved fully satisfy the requirements of 40 CFR part 70 and the Clean Air Act. Therefore, EPA is taking direct final action to fully approve the Delaware Title V operating permit program in accordance with 40 CFR 70.2 definition of “a major source.” The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's **Federal Register** EPA is publishing a separate document that will serve as the proposal to approve this amendment to Delaware's operating permit program if adverse comments are filed relevant to the issues discussed in this action. This rule will be effective on February 5, 2007. If EPA receives adverse comments, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not subject of an adverse comment. 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 a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a State rule implementing a Federal standard, 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 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing State operating permit program 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 an operating permit program for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews an operating permit program submission, to use VCS in place of an operating permit program 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). 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. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). 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 *February 5, 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 fully approving Delaware's Title V operating permit program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) This action approves an amendment to the Delaware Title V operating permit program to correct the definition of a “major source.” List of Subjects in 40 CFR Part 70 Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements. Dated: November 21, 2006. William T. Wisniewski, Acting Regional Administrator, Region III. 40 CFR part 70 is amended as follows: PART 70—[AMENDED] 1. The authority citation for part 70 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 2. Appendix A to part 70 is amended by adding paragraph
(c)in the entry for Delaware to read as follows: Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs Delaware
(c)The Delaware Department of Natural Resources and Environmental Control submitted program amendment on May 18, 2004. This rule amendment contained in the May 18, 2004 submittal is necessary to make the current definition as stringent as the corresponding provision of 40 CFR part 70, which went into effect on November 27, 2001. The State is hereby granted approval effective on February 5, 2007. [FR Doc. E6-20645 Filed 12-5-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0175; FRL-8084-2] Pesticides; Food Packaging Treated with a Pesticide AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: This rule excepts from the definitions of “pesticide chemical” and “pesticide chemical residue” under FFDCA section 201(q), food packaging (e.g. paper and paperboard, coatings, adhesives, and polymers) that is treated with a pesticide as defined in the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) section 2(u). As a result, such ingredients in food packaging treated with a pesticide are exempt from regulation under FFDCA section 408 as pesticide chemical residues. Further, a food that bears or contains such ingredients are not subject to enforcement by the Food and Drug Administration
(FDA)under section 402(a)(2)
(B)of the FFDCA since the ingredients are not pesticide chemical residues. Instead, such ingredients are subject to regulation by the FDA as food additives under FFDCA section 409. FDA generally regulates such food additives in food packaging as food contact substances under FFDCA, section 409(h). This rule expands the scope of the provision in 40 CFR 180.4 which currently applies only to food packaging impregnated with an insect repellent - one type of pesticide. This rule, as with the rule it amends, only applies to the food packaging materials themselves; it does not otherwise limit EPA's FFDCA jurisdiction over pesticides or limit FDA's jurisdiction over substances subject to FDA regulation as food additives. EPA, in consultation with FDA, believes this rule will eliminate the duplicative FFDCA jurisdiction and economize Federal government resources while continuing to protect human health and the environment. Under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), EPA still regulates the food packaging as an inert ingredient of the pesticide product and still regulates the pesticide active ingredient in the treated food packaging under both FIFRA and the FFDCA. DATES: This direct final rule is effective February 5, 2007 without further notice unless EPA receives adverse comments in writing. Any comments must be received on or before January 5, 2007. If EPA receives adverse comments, EPA will publish a timely withdrawal in the **Federal Register** informing the public that this direct final rule will not take effect. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPP-2006-0175, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPP-2006-0175. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line 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 regulations.gov or e-mail. The Federal regulations.gov website 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 regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the 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 docket 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, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Mari L. Duggard, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-0028; fax number:
(703)308-7026; e-mail address: *duggard.mari@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are a manufacturer/wholesaler of sanitary food packaging products or are a pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Pesticide manufacturing (NAICS 32532) • Food packaging manufacturers (NAICS 32222) This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 180.4. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. *Docket.* EPA has established a docket for this action under docket ID number EPA-HQ-OPP-2006-0175. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. 2. *Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date, and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Background A. What Action is the Agency Taking? EPA has received applications for the registration of pesticides under FIFRA that, as proposed, will be applied to food packaging materials. These pesticides are generally intended to function as alternatives to more costly and more toxic applications of insecticides in food storage and retail establishments. The regulatory framework for this use of pesticides raises a number of complex jurisdictional issues for EPA and FDA. 1 Because the treated packaging materials will be sold to food distributors for the purpose of controlling pest infestations, as well as for packaging food, the pesticide treated food packaging materials will be subject to the pesticide product registration requirements of section 3 of FIFRA. Under FIFRA, the components of pesticides are either active ingredients or inert ingredients. Active ingredients are those which, among other things, will “prevent, destroy, repel or mitigate any pest.” (FIFRA section 2(a)) Inert ingredients are ingredients “which are not active.” (FIFRA section 2(m)). Thus, the components of the food packaging (paperboards, coatings, etc.) become inert ingredients of a pesticide product under FIFRA whenever the food packaging is treated with a pesticide active ingredient and is distributed or sold with the purpose of controlling pests. 2 Such inert ingredients are not used for a pesticidal purpose in the production, storage, processing, or transportation of food. However, as inert ingredients, these components of food packaging are also subject to regulation as “pesticide chemical residues” under FFDCA section 408. 1 This rule does not include within its scope substances which may be regulated as pesticides under FIFRA that are used to prevent, destroy, repel or mitigate microorganisms when such substances are included for such use in or are applied for such use on food packaging (without regard to whether the substances are intended to have an ongoing effect on any portion of the packaging) (see FFDCA section 201(q)(1)(B)(ii) which excludes such substances from the definition of “pesticide chemical”). Because such substances are already excluded from the definition of pesticide chemical residue, it is unnecessary to address these substances in this rule. 2 It is important to understand that this rule only applies to a very small subset of food packaging materials: pesticide-treated food packaging that is distributed or sold with the purpose of controlling pests. Food packaging that is not distributed or sold to control pests is not a pesticide and is not subject to this rule. For example, packaged products that are simply treated with pesticides by food distributors, retailers or homeowners solely to control pests on site do not themselves become pesticides simply as a result of such applications. Rather, the product itself must be distributed with the purpose of providing pest control to become a pesticide. The treated packaging materials addressed in this rule are those that are sold for the express purpose of providing ongoing protection from pests that may contaminate the products made with the treated packaging. Under section 408 of the FFDCA, any pesticide chemical residue in or on food is deemed unsafe, unless EPA has established a tolerance or tolerance exemption that covers the pesticide chemical residue. This is true even though FDA may have previously issued regulations under section 409 of FFDCA permitting the use of these materials in food packaging that has not been treated with a pesticide. As a result, the same food packaging materials would be subject to regulation under FFDCA by both Agencies. EPA is taking today's action in order to give FDA jurisdiction under the FFDCA over the inert ingredients in food packaging treated with a pesticide as food additives. Consequently, EPA would no longer have jurisdiction over such substances as pesticide chemicals under the FFDCA since a pesticide chemical and a pesticide chemical residue are excluded from the definition of food additive in FFDCA section 201(s). Given FDA's expertise and experience in regulating the components of food packaging, EPA, in consultation with FDA, believes this rule will eliminate the duplicative FFDCA jurisdiction and economize Federal government resources while continuing to protect human health and the environment without additional regulatory oversight by EPA. In 1998, EPA consciously limited the exception at 40 CFR 180.4 to food packaging materials impregnated with an insect repellent, since at the time of promulgation EPA had only received an application for a pesticide product containing an insect repellent. EPA has now received applications for other treated food packaging products that contain active ingredients that are not insect repellents and will not be applied through impregnation of the materials. EPA, in consultation with FDA, believes it is appropriate to extend the 1998 rule to give FDA sole jurisdiction under the FFDCA over the inert ingredients in such food packaging products without regard to the application technique and mode of action of the active ingredients in such products. Again, this action does not affect EPA's jurisdiction under section 408 over ingredients other than the packaging materials in such products (including the pesticide active ingredient), nor does it affect EPA's jurisdiction under FIFRA to regulate such products. B. What Is the Agency's Authority for Taking This Action? Section 201(q)(3) of FFDCA, as amended by the Food Quality Protection Act (FQPA), allows the Administrator, under specified conditions, to except certain substances from the definition of “pesticide chemical” or “pesticide chemical residue” if: A. Its occurrence as a residue on or in a raw agricultural commodity or processed food is attributable primarily to natural causes or human activities not involving the use of any substance for a pesticidal purpose in the production, storage, processing, or transportation of any raw agricultural commodity or processed food, and: B. The Administrator, after consultation with the Secretary, determines that the substance more appropriately should be regulated under one or more provisions of this Act other than sections 402(a)(2)(B) and 408. With today's rule, EPA is excepting from the definition of “pesticide chemical” substances that are inert ingredients in food packaging treated with a pesticide, when such ingredients are the components of the food packaging (e.g. paper and paperboard, coatings, adhesives and polymers). It is important to note that this rule does not affect EPA's regulation of such substances as inert ingredients under FIFRA. EPA will continue to exercise jurisdiction over these substances when they are used as inert ingredients in food packaging material that is intended to produce a pesticidal effect. The materials that make up food packaging treated with a pesticide may serve one of two purposes: 1. To control pests, or 2. to be one of the materials that make up the container for food. As a result of this rule, under FFDCA, EPA will continue to regulate the materials which control pests and FDA will regulate the materials that make up the food packaging material. Consistent with EPA's pesticide registration regulations, EPA will not issue a registration under FIFRA for pesticide products containing food packaging inert ingredients if the presence of these ingredients in or on food is not authorized or permitted by FFDCA and the implementing regulations. EPA, in consultation with FDA, believes that section 201(q)(3) is applicable to inert ingredients in pesticide treated food packaging materials that are the components of the food packaging (paperboard, coatings, etc). When such inert ingredients are the components of the food packaging itself, EPA believes the occurrence of these substances as residues in or on food would be appropriately excepted from the definition of “pesticide chemical” or “pesticide chemical residue” because such substances are not attributable primarily to the use of the substances for a pesticidal purpose in the production, storage, processing or transportation of food. Rather, the presence of such substances as residues in food is primarily attributable to their use for purposes of packaging food. For this reason, and because of FDA's considerable experience in regulating such substances found in food packaging, EPA, after consulting with FDA, believes it is appropriate for FDA to regulate these inert ingredients under section 409 of FFDCA. As noted, this regulation excepts from the definition of “pesticide chemical” and “pesticide chemical residue” any inert ingredient that is a component of food packaging material treated with a pesticide. EPA, in consultation with FDA, believes the identity of the pesticide in or on the packaging material is not relevant to a determination under section 201(q)(3) regarding whether it is appropriate to except an inert ingredient from the definition of pesticide chemical or pesticide chemical residue. As noted above, that determination turns only on whether: 1. the occurrence of the residues of the substance in or on food is attributable primarily to the use of substances for a pesticidal purpose in the production, storage, processing or transportation of food; and 2. whether it is more appropriate to regulate such substances under another provision of FFDCA other than sections 402(a)(2)(B) and 408. Thus, EPA has determined that inert ingredients that are the components of the food packaging material in pesticide treated food packaging are more appropriately regulated by FDA under FFDCA. This rule therefore amends 40 CFR 180.4 to extend to any food packaging materials treated with a pesticide. EPA is issuing this action as a direct final rule without prior proposal because the Agency believes that this action is not controversial and will not result in any adverse comments. EPA previously received no adverse comments when it issued the current rule at 40 CFR 180.4 to except food packaging materials impregnated with insect repellents from EPA jurisdiction under section 408. Because this amendment to § 180.4 likewise only applies to the food packaging materials, and not to the pesticide active ingredient used in such products, EPA believes this action is similarly non-controversial The Agency also believes that it is important to make this action effective as soon as possible, 1. in order to address the current, unnecessary overlap in jurisdiction between EPA and FDA under FFDCA; and 2. to allow the Agency to act expeditiously on pending applications for registration by eliminating the need for developing numerous individual tolerance exemptions for the components of the packaging material. If no relevant adverse comment is submitted within 30 days of publication, this action will become effective 60 days after publication without any further action by the Agency. If, however, a relevant adverse comment is received during the comment period, this final rule will be withdrawn and the public comments received will be addressed in a subsequent final rule, or EPA may request additional public comments. For the reasons set forth above, EPA believes that it is appropriate to issue this rule as direct final rule. In addition, this rule also conforms with the “good cause” exemption under section 553(b)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(B)), which allows agencies to issue an action without additional notice and comment if further notice and comment would be unnecessary. III. Statutory and Executive Order Reviews As an exception, this action does not impose any regulatory obligations. Under Executive Order 12866 entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), it has been determined that this rule is not “significant” and is not subject to OMB review. This rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et. Seq.* , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Pub. L. 104-4). This rule has no federalism or tribal implications, because it will not have substantial direct effects on States or Indian tribes, on the relationship between the Federal Government and the States or Indian tribes, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes, as specified in Executive Orders 13132 (entitled Federalism, 64 FR 43255, August 10, 1999) and 13175 (entitled Consultation and Coordination with Indian Tribal Governments, 65 FR 67249, November 6, 2000. Nor does this rule raise issues that require special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994), or require OMB review in accordance with Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This rule is also not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect energy Supply, Distribution or Use (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use. In addition, this action does not involve any standards that would require Agency consideration pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (Pub. *L.* 104-113). Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ), the Agency hereby certifies that this regulatory action will not have a significant economic impact on a substantial number of small entities, because this regulatory action is an exemption and imposes no regulatory obligations. EPA will provide this information to the Small Business Administration's office of Advocacy upon request. IV. 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 the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and record-keeping requirements. Dated: November 14, 2006. Janet L. Andersen, Division Director, Biopesticides and Pollution Prevention Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346(a), and 371 2. Section 180.4 is amended by revising paragraph
(a)to read as follows: § 180.4 Exceptions.
(a)*General* . Inert ingredients in food packaging treated with a pesticide, when such inert ingredients are the components of the food packaging material (e.g. paper and paperboard, coatings, adhesives, and polymers). [FR Doc. E6-20270 Filed 12-05-06; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0664; FRL-8100-3] Paraquat Dichloride; Pesticide Tolerance Correction AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; Correction. SUMMARY: EPA issued a final rule in the **Federal Register** of September 6, 2006, concerning establishing tolerances for residues of paraquat dichloride in or on various food and feed commodities. This document is being issued to correct typographical errors. DATES: This final rule is effective December 6, 2006. ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2006-0664. All documents in the docket are listed on the regulations.gov web site. Although listed in the index, some information is not publicly available, e.g., 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 in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Hope Johnson, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington DC 20460-0001; telephone number: 703-305-5410; e-mail address: *johnson.hope@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under the FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document and Other Related Information? In addition to using regulations.gov, you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . II. What Does this Correction Do? In the **Federal Register** of September 6, 2006, (71 FR 52487), EPA issued a pesticide tolerance for residues of paraquate dichloride on various commodities. This document is amending 40 CFR 180.205 of the Code of Federal Regulations by changing the terminology used to refer to “fruit, pome, group 12” to correctly refer to “fruit, stone, group 12.” III. Why is this Correction Issued as a Final Rule? Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's technical correction final without prior proposal and opportunity for comment, because the use of notice and comment procedures are unnecessary to effectuate this correction. As such, EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B). IV. Do Any of the Statutory and Executive Order Reviews Apply to this Action? No. This action only corrects errors in the amendatory language for a previously published final rule and does not impose any new requirements. EPA's compliance with the statutes and Executive Orders for the underlying rule is discussed in Unit VII. of the September 6, 2006, final rule (71 FR 52487). V. 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 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 final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agriculutural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: November 22, 2006. Donald R. Stubbs, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR part 180 is corrected as follows: PART 180—AMENDED 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. § 180.205 [Amended] 2. In § 180.205, the table to paragraph
(a)is amended by revising the commodity term “fruit, pome, group 12” to read “fruit, stone, group 12.” [FR Doc. E6-20640 Filed 12-5-06; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2 and 87 [WT Docket No. 01-289; FCC 06-148] Aviation Communications AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In this document, the Federal Communications Commission (Commission or FCC) addresses a number of important issues pertaining to the Aviation Radio Services, amending its frequency allocation and radio treaty matters and aviation services rules to ensure that they remain up-to-date and continue to further the Commission's goals of accommodating new technologies, facilitating the efficient and effective use of the aeronautical spectrum, avoiding unnecessary regulation, and, above all, enhancing the safety of flight. In many cases these rule amendments also promote public safety generally and improve our homeland security. DATES: Effective February 5, 2007. FOR FURTHER INFORMATION CONTACT: Jeffrey Tobias, *Jeff.Tobias@FCC.gov* , Mobility Division, Wireless Telecommunications Bureau,
(202)418-1617, or TTY
(202)418-7233. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's *Second Report and Order* in WT Docket No. 01-289 ( *Second Report and Order* ), FCC 06-148, adopted on October 4, 2006, and released on October 10, 2006. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: *http://www.fcc.gov.* Alternative formats are available to persons with disabilities by sending an e-mail to *fcc504@fcc.gov* or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). 1. The *Second Report and Order* addresses issues raised in the *Further Notice of Proposed Rule Making (FNPRM)* in this WT Docket No. 01-289 proceeding. The Commission takes the following significant actions in the *Second Report and Order:*
(i)Authorizes the use of Universal Access Transceiver
(UAT)technology on the frequency 978 MHz;
(ii)declines to adopt any immediate changes to the part 87 rules governing the Aeronautical Mobile Satellite (Route) Service (AMS(R)S) with respect to technical flexibility, the licensing of AMS(R)S in additional frequency bands under part 87, or priority and preemptive access for AMS(R)S communications vis-vis public correspondence communications and other non-safety-related Mobile Satellite Service
(MSS)communications;
(iii)removes all of the former Civil Air Patrol
(CAP)channels from the table of frequencies available for assignment under part 87;
(iv)removes allocations for radionavigation in the 14000-14400 MHz band;
(v)streamlines the listing of high frequency
(HF)channels in the table of frequencies available for assignment under part 87;
(vi)provides the Federal Aviation Administration
(FAA)with greater flexibility in the use of air traffic control
(ATC)frequencies;
(vii)declines to adopt rules that would authorize a new type of emergency locator transmitter
(ELT)designed to operate on the frequency 121.5 MHz;
(viii)adopts rules permitting use of an alternative station identification format by aircraft that are being moved by maintenance personnel from one airport location to another;
(ix)eliminates the rule authorizing the assignment of FCC control numbers to ultralight aircraft for station identification; and
(x)declines at present to make any rule changes pertaining to the Plan for the Security Control of Air Traffic and Air Navigation Aids (SCATANA). I. Procedural Matters A. Paperwork Reduction Act Analysis 2. The *Second Report and Order* does not contain any new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). B. Report to Congress 3. The Commission will send a copy of this *Second Report and Order* in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). C. Final Regulatory Flexibility Analysis 4. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis
(IRFA)was incorporated in the *FNPRM* in this proceeding. The Commission sought written public comment on the proposals in the *FNPRM* , including comment on the IRFA. This present Final Regulatory Flexibility Analysis
(FRFA)conforms to the RFA. Need for, and Objectives of, the Report and Order 5. The rules adopted in the *Second Report and Order* are intended to ensure that the Commission's part 87 rules governing the Aviation Radio Service remain up-to-date and continue to further the Commission's goals of accommodating new technologies, facilitating the efficient and effective use of the aeronautical spectrum, avoiding unnecessary regulation, and, above all, enhancing the safety of flight. Specifically, in the *Second Report and Order* the Commission
(a)authorizes the use of UAT technology on the frequency 978 MHz;
(b)removes all of the former CAP channels from the table of frequencies available for assignment under part 87;
(c)removes allocations for radionavigation in the 14000-14400 MHz band;
(d)streamlines the listing of HF channels in the table of frequencies available for assignment under part 87;
(e)provides the FAA with greater flexibility in the use of ATC frequencies;
(f)declines to adopt rules that would authorize a new type of ELT designed to operate on the frequency 121.5 MHz;
(g)codifies the terms of a waiver permitting use of an alternative station identification format by aircraft that are being moved by maintenance personnel from one airport location to another;
(h)eliminates the rule authorizing the assignment of FCC control numbers to ultralight aircraft for station identification; and
(i)declines at present to make any rule changes pertaining to the Plan for the Security Control of Air Traffic and Air Navigation Aids (SCATANA). Summary of Significant Issues Raised by Public Comments in Response to the IRFA 6. No comments were submitted specifically in response to the IRFA. Nonetheless, we have considered the potential economic impact on small entities of the rules discussed in the IRFA, and we have considered alternatives that would reduce the potential economic impact on small entities of the rules enacted herein. Description and Estimate of the Number of Small Entities to Which Rules Will Apply 7. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the Small Business Administration (SBA). 8. Small businesses in the aviation and marine radio services use a marine very high frequency (VHF), medium frequency (MF), or high frequency
(HF)radio, any type of emergency position indicating radio beacon (EPIRB) and/or radar, an aircraft radio, and/or any type of emergency locator transmitter (ELT). The Commission has not developed a definition of small entities specifically applicable to these small businesses. For purposes of this FRFA, therefore, the applicable definition of small entity is the definition under the SBA rules applicable to wireless service providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. 9. Some of the rules adopted herein may also affect small businesses that manufacture aviation radio equipment. The Commission has not developed a definition of small entities applicable to aviation radio equipment manufacturers. Therefore, the applicable definition is that for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturers. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 had employment of under 500, and an additional 13 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 10. The *Second Report and Order* does not impose any additional reporting, recordkeeping, or other compliance requirements on small entities. The rule amendments adopted in the *Second Report and Order* generally either relieve licensees of pre-existing technical constraints or simply streamline and update the Commission's rules in a manner that will have no impact at all on regulatory compliance costs. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered 11. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
(3)the use of performance rather than design standards; and
(4)an exemption from coverage of the rule, or any part thereof, for such small entities.” 12. As explained in section C of this FRFA, above, the *Second Report and Order* does not impose any additional reporting, recordkeeping, or other compliance requirements on small entities. In the *Second Report and Order* , the Commission discusses the possibility of further relaxing AMS(R)S technical requirements to accommodate non-Inmarsat satellite systems, and the Commission did consider, as one alternative, immediately amending the part 87 rules for that purpose. The Commission ultimately decided, however, that it would be prudent to seek further comment on this question, especially in light of the fact that the International Civil Aviation Organization
(ICAO)has not yet adopted Standards and Recommended Practices for such AMS(R)S operations. Similarly, the Commission could have adopted part 87 licensing rules for AMS(R)S in the 1.6 GHz, 2 GHz, and 5 GHz frequency bands, subject to a requirement that satellite system operators accord priority and preemptive access to AMS(R)S communications over other types of communications. The Commission deferred a final decision on this matter, primarily to acquire additional information regarding whether such a priority and preemptive access requirement is truly necessary, and regarding the burden such a requirement may impose on MSS/AMS(R)S licensees. F. Report to Congress 13. The Commission will send a copy of this *Second Report and Order* in WT Docket No. 01-289, including the Final Regulatory Flexibility Analysis, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the *Second Report and Order* , including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the SBA. A copy of the *Second Report and Order* and the Final Regulatory Flexibility Analysis (or summaries thereof) will also be published in the **Federal Register** . List of Subjects 47 CFR Part 2 Communications equipment; Disaster assistance; Imports; Radio; Reporting and recordkeeping requirements; Telecommunications; Television; Wiretapping and electronic surveillance. 47 CFR Part 87 Air transportation; Civil defense; Communications equipment; Defense communications; Radio; Reporting and recordkeeping requirements; Weather. Federal Communications Commission. Marlene H. Dortch, Secretary. Rule Changes For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 87 as follows: PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for part 2 continues to read as follows: Authority: 47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted. 2. Section 2.106, the Table of Frequency Allocations, is amended as follows: a. Revise pages 29 and 46. b. In the list of United States
(US)Footnotes, remove footnote US292 and add footnote US400. The revisions and additions read as follows: § 2.106 Table of Frequency Allocations. BILLING CODE 6712-01-P ER06DE06.006 ER06DE06.007 BILLING CODE 6712-01-C United States
(US)Footnotes US400 The use of the center frequency 978 MHz may be authorized to Universal Access Transceiver
(UAT)stations on a primary basis for the specific purpose of transmitting datalink information in support of the Automatic Dependent Surveillance—Broadcast (ADS-B) Service, Traffic Information Services—Broadcast (TIS-B), and Flight Information—Broadcast (FIS-B). PART 87—AVIATION SERVICES 3. The authority citation for part 87 continues to read as follows: Authority: 47 U.S.C. 154, 303 and 307(e), unless otherwise noted. 4. Amend § 87.5 by adding entries in alphabetical order for “Automatic Dependent Surveillance—Broadcast (ADS-B) Service,” “Traffic Information Services—Broadcast (TIS-B) Service” and “Universal Access Transceiver (UAT)” to read as follows: § 87.5 Definitions. *Automatic Dependent Surveillance—Broadcast (ADS-B) Service.* Broadcast transmissions from aircraft, supporting aircraft-to-aircraft or aircraft-to-ground surveillance applications, including position reports, velocity vector, intent and other relevant information about the aircraft. *Traffic Information Services—Broadcast (TIS-B).* Traffic information broadcasts derived from ground-based radar systems. *Universal Access Transceiver (UAT).* A radio datalink system authorized to operate on the frequency 978 MHz to support Automatic Dependent Surveillance—Broadcast (ADS-B) Service, Traffic Information Services—Broadcast (TIS-B) and Flight Information Service—Broadcast (FIS-B). 5. Amend § 87.107 by removing paragraph (a)(2), redesignating paragraphs (a)(3) through (a)(5) as (a)(2) through (a)(4), and revising newly designated paragraph (a)(2) to read as follows: § 87.107 Station identification.
(a)* * *
(2)The type of aircraft followed by the characters of the registration marking (“N” number) of the aircraft, omitting the prefix letter “N.” When communication is initiated by a ground station, an aircraft station may use the type of aircraft followed by the last three characters of the registration marking. Notwithstanding any other provision of this section, an aircraft being moved by maintenance personnel from one location in an airport to another location in that airport may be identified by a station identification consisting of the name of the company owning or operating the aircraft, followed by the word “Maintenance” and additional alphanumeric characters of the licensee's choosing. 6. Amend § 87.137 by amending the table in paragraph
(a)to add an entry for F1D and footnote 18 to read as follows: § 87.137 Types of emission.
(a)* * * Class of emission Emission designator Authorized bandwidth (kilohertz) Below 50 MHz Above 50 MHz 16 Frequency deviation * * * * * * * F1D 18 1M30F1D 1300 kHz 312.5 kHz * * * * * * * * * * * * 18 Authorized only for Universal Access Transceiver use at 978 MHz. 7. Amend § 87.139 by adding paragraph
(l)to read as follows: § 87.139 Emission limitations. (l)(1) For Universal Access Transceiver transmitters, the average emissions measured in a 100 kHz bandwidth must be attenuated below the maximum emission level contained within the authorized bandwidth by at least: Frequency
(MHz)Attenuation
(dB)+/−0.5 0 +/−1.0 18 +/−2.25 50 +/−3.25 60
(2)Universal Access Transceiver transmitters with an output power of 5 Watts or more must limit their emissions by at least 43 + 10 log
(P)dB on any frequency removed from the assigned frequency by more than 250% of the authorized bandwidth. Those emissions shall be measured with a bandwidth of 100 kHz. P in the above equation is the average transmitter power measured within the occupied bandwidth in Watts.
(3)Universal Access Transceiver transmitters with less than 5 Watts of output power must limit their emissions by at least 40 dB relative to the carrier peak on any frequency removed from the assigned frequency by more than 250% of the authorized bandwidth. Those emissions shall be measured with a bandwidth of 100 kHz. 8.Amend § 87.141 by adding paragraph
(k)to read as follows: § 87.141 Modulation requirements.
(k)Universal Access Transceiver transmitters must use F1D modulation without phase discontinuities. 9. Amend § 87.171 by adding in alphabetical order the symbol and class of station “UAT—Universal Access Transceiver” to read as follows: § 87.171 Class of station symbols. UAT—Universal Access Transceiver 10. Amend § 87.173 by revising the table in paragraph
(b)to read as follows: § 87.173 Frequencies.
(b)Frequency table: Frequency or frequency band Subpart Class of station Remarks 90-110 kHz Q RL LORAN “C”. 190-285 kHz Q RLB Radiobeacons. 200-285 kHz O FAC Air traffic control. 325-405 kHz O FAC Air traffic control. 325-435 kHz Q RLB Radiobeacons. 410.0 kHz F MA International direction-finding for use outside of United States. 457.0 kHz F MA Working frequency for aircraft on over-water flights. 500.0 kHz F MA International calling and distress frequency for ships and aircraft on over-water flights. 510-535 kHz Q RLB Radiobeacons. 2182.0 kHz F MA International distress and calling. 2648.0 kHz I AX Alaska station. 2850.0-3025.0 kHz I MA, FAE International HF. 2851.0 kHz I, J MA, FAE, FAT International HF; Flight Test. 2866.0 kHz I MA, FAE Domestic HF; (Alaska). 2875.0 kHz I MA, FAE Domestic HF. 2878.0 kHz I MA1, FAE Domestic HF; International HF. 2911.0 kHz I MA, FAE Domestic HF. 2956.0 kHz I MA, FAE Domestic HF. 3004.0 kHz I, J MA, FAE, FAT International HF; Flight Test. 3019.0 kHz I MA1, FAE Domestic HF; International HF. 3023.0 kHz F, M, O MA1, FAR, FAC Search and rescue communications. 3281.0 kHz K MA, FAS Lighter-than-air craft and aeronautical stations serving lighter-than-air craft. 3400.0-3500.0 kHz I MA, FAE International HF. 3434.0 kHz I MA1, FAE Domestic HF. 3443.0 kHz J MA, FAT Flight Test. 3449.0 kHz I MA, FAE Domestic HF. 3470.0 kHz I MA, FAE Domestic HF; International HF. 4125.0 kHz F MA Distress and safety with ships and coast stations. 4550.0 kHz I AX Gulf of Mexico. 4645.0 kHz I AX Alaska. 4650.0-4700.0 kHz I MA, FAE International HF. 4672.0 kHz I MA1, FAE Domestic HF. 4947.5 kHz I AX Alaska. 5036.0 kHz I AX Gulf of Mexico. 5122.5 kHz I AX Alaska. 5167.5 kHz I FA Alaska emergency. 5310.0 kHz I AX Alaska. 5450.0-5680.0 kHz I MA, FAE International HF. 5451.0 kHz J MA, FAT Flight Test. 5463.0 kHz I MA1, FAE Domestic HF. 5469.0 kHz J MA, FAT Flight Test. 5472.0 kHz I MA, FAE Domestic HF. 5484.0 kHz I MA, FAE Domestic HF. 5490.0 kHz I MA, FAE Domestic HF. 5496.0 kHz I MA, FAE Domestic HF. 5508.0 kHz I MA1, FAE Domestic HF. 5571.0 kHz J MA, FAT Flight Test. 5631.0 kHz I MA, FAE Domestic HF. 5680.0 kHz F, M, O MA1, FAC, FAR Search and rescue communications. 5887.5 kHz I AX Alaska. 6525.0-6685.0 kHz I MA, FAE International HF. 6550.0 kHz J MA, FAT Flight Test. 6580.0 kHz I MA, FAE Domestic HF. 6604.0 kHz I MA, FAE Domestic HF. 8015.0 kHz I AX Alaska. 8364.0 kHz F MA Search and rescue communications. 8815.0-8965.0 kHz I MA, FAE International HF. 8822.0 kHz J MA, FAT Flight Test. 8855.0 kHz I MA, FAE Domestic HF; international HF. 8876.0 kHz I MA, FAE Domestic HF. 10005.0-10100.0 kHz I MA, FAE International HF. 10045.0 kHz J MA, FAT Flight Test. 10066.0 kHz I MA, FAE Domestic HF; international HF. 11275.0-11400.0 kHz I MA, FAE International HF. 11288.0 kHz J MA, FAT Flight Test. 11306.0 kHz J MA, FAT Flight Test. 11357.0 kHz I MA, FAE Domestic HF. 11363.0 kHz I MA, FAE Domestic HF. 13260.0-13360.0 kHz I MA, FAE International HF. 13312.0 kHz I, J MA, FAE, FAT International HF; Flight Test. 17900.0-17970.0 kHz I MA, FAE International HF. 17964.0 kHz J MA, FAT Flight Test. 21924.0-22000.0 kHz I MA, FAE International HF. 21931.0 kHz J MA, FAT Flight Test. 72.020-75.980 MHz P FA, AXO Operational fixed; 20 kHz spacing. 75.000 MHz Q RLA Marker beacon. 108.000 MHz Q RLT 108.000-117.950 MHz Q RLO VHF omni-range. 108.000-117.975 MHz Q DGP Differential GPS. 108.050 MHz Q RLT 108.100-111.950 MHz Q RLL ILS Localizer. 108.100 MHz Q RLT 108.150 MHz Q RLT 118.000-121.400 MHz O MA, FAC, FAW, GCO, RCO, RPC 25 kHz channel spacing. 121.500 MHz G, H, I, J, K, M, O MA, FAU, FAE, FAT, FAS, FAC, FAM, FAP Emergency and distress. 121.600-121.925 MHz O, L, Q MA, FAC, MOU, RLT, GCO, RCO, RPC 25 kHz channel spacing. 121.950 MHz K FAS 121.975 MHz F MA2, FAW, FAC, MOU Air traffic control operations. 122.000 MHz F MA, FAC, MOU Air carrier and private aircraft enroute flight advisory service provided by FAA. 122.025 MHz F MA2, FAW, FAC, MOU Air traffic control operations. 122.050 MHz F MA, FAC, MOU Air traffic control operations. 122.075 MHz F MA2, FAW, FAC, MOU Air traffic control operations. 122.100 MHz F, O MA, FAC, MOU Air traffic control operations. 122.125-122.675 MHz F MA2, FAC, MOU Air traffic control operations; 25 kHz spacing. 122.700 MHz G, L MA, FAU, MOU Unicom at airports with no control tower; Aeronautical utility stations. 122.725 MHz G, L MA, FAU, MOU Unicom at airports with no control tower; Aeronautical utility stations. 122.750 MHz F MA2 Private fixed wing aircraft air-to-air communications. 122.775 MHz K MA, FAS 122.800 MHz G, L MA, FAU, MOU Unicom at airports with no control tower; Aeronautical utility stations. 122.825 MHz I MA, FAE Domestic VHF. 122.850 MHz H, K MA, FAM, FAS 122.875 MHz I MA, FAE Domestic VHF. 122.900 MHz F, H, L, M MA, FAR, FAM, MOU 122.925 MHz H MA2, FAM 122.950 MHz G, L MA, FAU, MOU Unicom at airports with control tower; Aeronautical utility stations. 122.975 MHz G, L MA, FAU, MOU Unicom at airports with no control tower; Aeronautical utility stations. 123.000 MHz G, L MA, FAU, MOU Unicom at airports with no control tower; Aeronautical utility stations. 123.025 MHz F MA2 Helicopter air-to-air communications; Air traffic control operations. 123.050 MHz G, L MA, FAU, MOU Unicom at airports with no control tower; Aeronautical utility stations. 123.075 MHz G, L MA, FAU, MOU Unicom at airports with no control tower; Aeronautical utility stations. 123.100 MHz M, O MA, FAC, FAR 123.125 MHz J MA, FAT Itinerant. 123.150 MHz J MA, FAT Itinerant. 123.175 MHz J MA, FAT Itinerant. 123.200 MHz J MA, FAT 123.225 MHz J MA, FAT 123.250 MHz J MA, FAT 123.275 MHz J MA, FAT 123.300 MHz K MA, FAS 123.325 MHz J MA, FAT 123.350 MHz J MA, FAT 123.375 MHz J MA, FAT 123.400 MHz J MA, FAT Itinerant. 123.425 MHz J MA, FAT 123.450 MHz J MA, FAT 123.475 MHz J MA, FAT 123.500 MHz K MA, FAS 123.525 MHz J MA, FAT 123.550 MHz J MA, FAT 123.575 MHz J MA, FAT 123.6-128.8 MHz O MA, FAC, FAW, GCO, RCO, RPC 25 kHz channel spacing. 128.825-132.000 MHz I MA, FAE Domestic VHF; 25 kHz channel spacing. 132.025-135.975 MHz O MA, FAC, FAW, GCO, RCO, RPC 25 kHz channel spacing. 136.000-136.400 MHz O, S MA, FAC, FAW, GCO, RCO, RPC Air traffic control operations; 25 kHz channel spacing. 136.425 MHz O, S MA, FAC, FAW, GCO, RCO, RPC Air traffic control operations. 136.450 MHz O, S MA, FAC, FAW, GCO, RCO, RPC Air traffic control operations. 136.475 MHz O, S MA, FAC, FAW, GCO, RCO, RPC Air traffic control operations. 136.500-136.875 MHz I MA, FAE Domestic VHF; 25 kHz channel spacing. 136.900 MHz I MA, FAE International and Domestic VHF. 136.925 MHz I MA, FAE International and domestic VHF. 136.950 MHz I MA, FAE International and domestic VHF. 136.975 MHz I MA, FAE International and domestic VHF. 156.300 MHz F MA For communications with ship stations under specific conditions. 156.375 MHz F MA For communications with ship stations under specific conditions; Not authorized in New Orleans Vessel traffic service area. 156.400 MHz F MA For communications with ship stations under specific conditions. 156.425 MHz F MA For communications with ship stations under specific conditions. 156.450 MHz F MA For communications with ship stations under specific conditions. 156.625 MHz F MA For communications with ship stations under specific conditions. 156.800 MHz F MA Distress, safety and calling frequency; For communications with ship stations under specific conditions. 156.900 MHz F MA For communications with ship stations under specific conditions. 157.425 MHz F MA For communications with commercial fishing vessels under specific conditions except in Great Lakes and St. Lawrence Seaway Areas. 243.000 MHz F MA Emergency and distress frequency for use of survival craft and emergency locator transmitters. 328.600-335.400 MHz Q RLG ILS glide path. 334.550 MHz Q RLT 334.700 MHz Q RLT 406.0-406.1 MHz F, G, H, I, J, K, M, O MA, FAU, FAE, FAT, FAS, FAC, FAM, FAP Emergency and distress. 960-1215 MHz F, Q MA, RL, RNV Electronic aids to air navigation. 978.000 MHz F, L, Q MA, MOU, UAT Universal Access Transceivers. UAT Q RLT 979.000 MHz Q RLT 1030.000 MHz Q RLT 1104.000 MHz Q RLT 1300-1350 MHz F, Q MA, RLS Surveillance radars and transponders. 1435-1525 MHz F, J MA, FAT Aeronautical telemetry and telecommand operations. 1559-1610 MHz Q DGP Differential GPS. 1559-1626.5 MHz F, Q MA, RL Aeronautical radionavigation. 1646.5-1660.5 MHz F TJ Aeronautical Mobile-Satellite (R). 2310-2320 MHz J MA, FAT Aeronautical telemetry and telecommand operations. 2345-2395 MHz J MA, FAT Aeronautical telemetry and telecommand operations. 2700-2900 MHz Q RLS, RLD Airport surveillance and weather radar. 4200-4400 MHz F MA Radio altimeters. 5000-5250 MHz Q MA, RLW Microwave landing systems. 5031.000 MHz Q RLT 5350-5470 MHz F MA Airborne radars and associated airborne beacons. 8750-8850 MHz F MA Airborne doppler radar. 9000-9200 MHz Q RLS, RLD Land-based radar. 9300-9500 MHz F, Q MA Airborne radars and associated airborne beacons. 13250-13400 MHz F MA Airborne doppler radar. 15400-15700 MHz Q RL Aeronautical radionavigation. 24750-25050 MHz F, Q MA, RL Aeronautical radionavigation. 32300-33400 MHz F, Q MA, RL Aeronautical radionavigation. 11. Amend § 87.187 by revising paragraphs (p), (q), and
(x)and adding paragraph
(ff)to read as follows: § 87.187 Frequencies.
(p)The frequency band 1435-1525 MHz is available on a primary basis and the frequency band 1525-1535 MHz is available on a secondary basis for telemetry and telecommand associated with the flight testing of aircraft, missiles, or related major components. This includes launching into space, reentry into the earth's atmosphere and incidental orbiting prior to reentry. The following frequencies are shared with flight telemetry mobile stations: 1444.5, 1453.5, 1501.5, 1515.5, and 1524.5 MHz. *See* § 87.303(d). Note to paragraph (p): Aeronautical telemetry operations must protect mobile-satellite operations in the 1525-2535 MHz band and maritime mobile-satellite operations in the 1530-1535 MHz band.
(q)The frequencies in the band 1545.000-1559.000 MHz and 1646.500-1660.500 MHz are authorized for use by the Aeronautical Mobile-Satellite
(R)Service. The use of the bands 1544.000-1545.000 MHz (space-to-Earth) and 1645.500-1646.500 MHz (Earth-to-space) by the Mobile-Satellite Service is limited to distress and safety operations. In the frequency bands 1549.500-1558.500 MHz and 1651.000-1660.000 MHz, the Aeronautical Mobile-Satellite
(R)requirements that cannot be accommodated in the 1545.000-1549.500 MHz, 1558.500-1559.000 MHz, 1646.500-1651.000 MHz, and 1660.000-1660.500 MHz bands shall have priority access with real-time preemptive capability for communications in the Mobile-Satellite Service. Systems not interoperable with the Aeronautical Mobile-Satellite
(R)Service shall operate on a secondary basis. Account shall be taken of the priority of safety-related communications in the Mobile-Satellite Service.
(x)The frequency bands 24450-24650 MHz, 24750-25050 MHz and 32300-33400 MHz are available for airborne radionavigation devices.
(ff)The frequency 978 MHz is authorized for Universal Access Transceiver data transmission. 12. Amend § 87.345 by adding paragraph
(f)to read as follows: § 87.345 Scope of service.
(f)Transmissions by aeronautical utility mobile stations for Universal Access Transceiver service are authorized. 13. Amend § 87.349 by adding paragraph
(e)to read as follows: § 87.349 Frequencies.
(e)The frequency 978.0 MHz is authorized for Universal Access Transceiver data transmission. 14. Amend § 87.421 by revising paragraph
(c)to read as follows: § 87.421 Frequencies.
(c)Frequencies listed in the introductory paragraph of this section are available to control towers and RCOs for communications with ground vehicles and aircraft on the ground. The antenna heights shall be restricted to the minimum necessary to achieve the required coverage. Channel spacing is 25 kHz. 15. Amend § 87.475 by adding paragraph (b)(9) and revising paragraphs (c)(1) and (c)(2) to read as follows: § 87.475 Frequencies.
(b)* * *
(9)978.0 MHz is authorized for Universal Access Transceiver service.
(c)* * *
(1)The frequencies set forth in § 87.187(c),
(e)through (j), (r), (t), and
(ff)and § 87.475(b)(6) through (b)(10), and (b)(12) may be assigned to radionavigation land test stations for the testing of aircraft transmitting equipment that normally operate on these frequencies and for the testing of land-based receiving equipment that operate with airborne radionavigation equipment.
(2)The frequencies available for assignment to radionavigation land test stations for the testing of airborne receiving equipment are 108.000 and 108.050 MHz for VHF omni-range; 108.100 and 108.150 MHz for localizer; 334.550 and 334.700 MHz for glide slope; 978 and 979 MHz (X channel)/1104 MHz (Y channel) for DME; 978 MHz for Universal Access Transceiver; 1030 MHz for air traffic control radar beacon transponders; and 5031.0 MHz for microwave landing systems. Additionally, the frequencies in paragraph
(b)of this section may be assigned to radionavigation land test stations after coordination with the FAA. The following conditions apply:
(i)The maximum power authorized on the frequencies 108.150 and 334.550 MHz is 1 milliwatt. The maximum power authorized on all other frequencies is one watt.
(ii)The pulse repetition rate
(PRR)of the 1030 MHz ATC radar beacon test set will be 235 pulses per second
(pps)±5pps.
(iii)The assignment of 108.000 MHz is subject to the condition that no interference will be caused to the reception of FM broadcasting stations and stations using the frequency are not protected against interference from FM broadcasting stations. [FR Doc. 06-9541 Filed 12-5-06; 8:45 am]
Connectionstraces to 20
25 references not yet in our index
  • 40 CFR 63
  • 40 CFR 63.7485
  • 40 CFR 63.7522
  • 40 CFR 60
  • 40 CFR 63.7491
  • 40 CFR 63.7491(c)
  • 40 CFR 63.7510(a)
  • 40 CFR 63.7541
  • 40 CFR 72
  • 40 CFR 63.7522(h)
  • 40 CFR 63.7525(b)
  • 40 CFR 63.7522(j)(3)
  • 40 CFR 63.7541(a)(2)
  • 40 CFR 9
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 40 CFR 70
  • 40 CFR 70.2
  • 40 CFR 180
  • 40 CFR 180.4
  • 40 CFR 180.205
  • Pub. L. 104-13
  • Pub. L. 107-198
  • 47 CFR 2
  • 47 CFR 87
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Fed. Reg.Proposed Rules
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Fed. Reg.Notices
Fed. Reg.Notices
C.F.R.§ 63.14
C.F.R.§ 60.14
U.S.C.§ 3501
C.F.R.§ 121.201
Cite40 CFR 63
Cite40 CFR 63.7485
Cite40 CFR 63.7522
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