Proposed Rules. Final rule

33,600 words·~153 min read·/register/2006/12/22/06-9831

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

BILLING CODE 5001-06-M ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2006-0354; FRL-8259-5] Approval and Promulgation of Air Quality Implementation Plans; Ohio; Revision to Ohio State Implementation Plan To Rescind Oxides of Nitrogen Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a revision to the Ohio State Implementation Plan

(SIP)submitted by Ohio on April 11, 2005 to rescind a rule which affected stationary combustion sources located within Priority I regions of the State and new sources regardless of location. The rule revision we are approving here also applies to nitric acid manufacture. We are taking this action at the request of the Ohio Environmental Protection Agency (Ohio EPA) because this rule is no longer the limiting regulation for any oxides of nitrogen (NO X ) emission units in the State. The rule was originally approved by EPA over 30 years ago and since then has been superseded by a number of more stringent State and Federal regulations. The Ohio NO X SIP call rules and Federal emission standards for utility and industrial units all have greater potential for reducing emissions of NO X and improving human health than does the State's rescinded rule. DATES: This final rule is effective on January 22, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2006-0354. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone John Paskevicz, Engineer at

(312)886-6084 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: John Paskevicz, Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-6084, or e-mail at *paskevicz.john@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows: I. What Action is EPA Taking? II. What is the Background for the Action? III. Final Action IV. Statutory and Executive Order Reviews I. What Action is EPA Taking? EPA is approving the request from Ohio to rescind a rule, Ohio Administrative Code

(OAC)3745-23-06, which the State has determined no longer applies to any source in the State. The rule formerly applied to sources of oxides of nitrogen (NO X ) including nitric acid plants and combustion sources greater than 250 million British Thermal Units

(BTU)per hour. Ohio made this request on April 11, 2005, following public hearing. We reviewed the State's request and find that it meets the requirements for technical approvability and agreed that the rule is redundant with regard to control of large NO X combustion sources and nitric acid plants in the State. We agree that the rule has been superseded by recent State and Federal rules and is therefore no longer needed. II. What is the Background for the Action? The Ohio EPA sent a letter and supporting materials to EPA requesting to revise the Ohio SIP by eliminating that portion of plan which approved rule 3745-23-06 of the Ohio Administrative Code. Ohio EPA had made the determination that this rule, originally promulgated in 1972, was no longer viable because it had been superseded by more recent and more stringent rules. We agreed with Ohio EPA and on June 1, 2006, we published a proposal in the **Federal Register** (71 FR 31129) to approve the State's request. In that proposal we asked the public to comment on the State's request and noted that there are no sources in the State subject to rule OAC 3745-23-06. We gave the public thirty days to respond to our proposed action. We did not receive any comments on the proposal from the public either via the U.S. Postal Service or through the EPA public docket on the EPA Web site, and conclude that the State's request is approvable. III. Final Action EPA is approving the SIP revision request submitted by Ohio on April 11, 2005. We are publishing this action because it meets all of the technical requirements for a revision of the SIP. We received no comments from the public regarding this action. VI. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review 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. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” 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). Regulatory Flexibility Act 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.* ). Unfunded Mandates Reform Act 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 (Public Law 104-4). Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. National Technology Transfer Advancement Act In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. Paperwork Reduction Act 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.* ). 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 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). 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 20, 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 may not be challenged later in proceedings to enforce its requirements. ( *See* Section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements. Dated: December 12, 2006. Bharat Mathur, Acting Regional Administrator, Region 5. For the reasons stated in the preamble, part 52, chapter I, of title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart KK—Ohio 2. Section 52.1890 is amended by adding paragraph

(c)to read as follows: § 52.1890 Removed control measures.

(c)On April 11, 2005, the Ohio Environmental Protection Agency submitted a request to revise the State's plan controlling nitrogen oxide emissions from stationary sources in the State. The request included the results of the action taken by Ohio EPA to rescind OAC 3745-23-06, which affected emissions of oxides of nitrogen from combustion sources and nitric acid plants. This action was preceded by a negative declaration regarding nitric acid plants dated April 11, 1994, and rule approvals (NO X SIP Call, NSPS, budget trading program, etc.) affecting large fossil-fueled utility and industrial boilers. OAC 3745-23-06, Control of nitrogen oxide emissions from stationary sources, also known as AP-7-06 in its original form, is therefore removed from the Ohio SIP. [FR Doc. E6-21864 Filed 12-21-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2006-0353; FRL-8259-7] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Redesignation of the Kent and Queen Anne's 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Maintenance Plan AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a redesignation request and a State Implementation Plan

(SIP)revision submitted by the State of Maryland. The Maryland Department of the Environment

(MDE)is requesting that Kent and Queen Anne's 8-hour Ozone Nonattainment Area (Kent and Queen Anne's area) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). In conjunction with its redesignation request, the State submitted a SIP revision consisting of a maintenance plan which provides for continued attainment of the 8-hour ozone NAAQS for the next 12 years, until 2018. Concurrently, EPA is approving the maintenance plan as meeting the requirements of Clean Air Act

(CAA)175A(b) with respect to the 1-hour ozone maintenance plan update. EPA is also approving the adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the 8-hour maintenance plan for Kent and Queen Anne's area for purposes of transportation conformity, and is approving those MVEBs. EPA is approving the redesignation request and the maintenance plan revision to the Maryland SIP in accordance with the requirements of the CAA. DATES: *Effective Date:* This final rule is effective on January 22, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2006-0353. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of Environment, 1800 Washington Boulevard, Baltimore, Maryland 21230. FOR FURTHER INFORMATION CONTACT: Linda Miller,

(215)814-2068, or by e-mail at *miller.linda@epa.gov* . SUPPLEMENTARY INFORMATION: I. Background On October 10, 2006 (71 FR 59414), EPA published a notice of proposed rulemaking

(NPR)for the State of Maryland. The NPR proposed approval of Maryland's redesignation request and a SIP revision that establishes a maintenance plan for Kent and Queen Anne's area setting forth how Kent and Queen Anne's will maintain attainment of the 8-hour ozone NAAQS for the next 12 years. The formal SIP revision was submitted on May 2, 2006 and supplemented on May 19, 2006. Other specific requirements of Maryland's redesignation request and SIP revision for the maintenance plan and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR. II. Final Action EPA is approving the State of Maryland's redesignation request and maintenance plan for the Kent and Queen Anne's area because the requirements for approval have been satisfied. EPA has evaluated Maryland's redesignation request, submitted on May 2, 2006, and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the Kent and Queen Anne's area has attained the 8-hour ozone standard. The final approval of this redesignation request will change the designation of the Kent and Queen Anne's area from nonattainment to attainment for the 8-hour ozone standard. EPA is approving the associated maintenance plan for this area, dated March 15, 2006 and submitted on May 2, 2006, as a revision to the Maryland SIP. EPA is concurrently approving the maintenance plan for the Kent and Queen Anne's area as the 1-hour ozone maintenance plan update pursuant to 175A(b). In this final rulemaking, EPA is notifying the public that we have found that the motor vehicle emissions budgets for NO X and VOCs in the Kent and Queen Anne's Counties, Maryland submitted 8-hour ozone maintenance plan are adequate and approved for conformity purposes. As a result of our finding, Kent and Queen Anne's Counties must use the motor vehicle emissions budgets from the submitted 8-hour ozone maintenance plan for future conformity determinations. The adequate and approved motor vehicle emissions budgets are provided in the following table: Adequate and Approved Motor Vehicle Emissions Budgets Budget year Relevant pollutants and precursors Relevant pollutants and precursors 2009 NO X 5.11 Tons/Day VOCs 2.72 Tons/Day. 2018 NO X 2.38 Tons/Day VOCs 1.62 Tons/Day. Kent and Queen Anne's area is subject to the CAA's requirements for basic ozone nonattainment areas until and unless it is redesignated to attainment. III. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this final 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 approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(e) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this final 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 final 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 affects the status of a geographical area, does not impose any new requirements on sources, or allow the state to avoid adopting or implementing other requirements, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This final rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission; to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. 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 final rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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 20, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, to approve the redesignation request, maintenance plan and adequacy determination for MVEBs for the Kent and Queen Anne's area, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Nitrogen dioxides, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: December 15, 2006. Donald S. Welsh, Regional Administrator, Region III. 40 CFR parts 52 and 81 are amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart V—Maryland 2. In § 52.1070, the table in paragraph

(e)is amended by adding an entry for the 8-Hour Ozone Maintenance Plan for the Kent and Queen Anne's Area at the end of the table to read as follows: § 52.1070 Identification of plan.

(e)* * * Name of non-regulatory SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation * * * * * * * 8-Hour Ozone Maintenance Plan for the Kent and Queen Anne's Area Kent and Queen Anne's Counties 05/2/06, 05/19/06 December 22, 2006 [Insert page number where the document begins]. PART 81—[AMENDED] 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 2. Section 81.321 is amended by revising the ozone table entry for the Kent and Queen Anne's Area to read as follows: § 81.321 Maryland. Maryland—Ozone (8-Hour Standard) Designated area Designation \a\ Date 1 Type Category/ classification Date 1 Type * * * * * * * Kent and Queen Anne's Area Kent County December 22, 2006 Attainment. Queen Anne's County December 22, 2006 Attainment. * * * * * * * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is June 15, 2004, unless otherwise noted. 2 Early Action Compact Area, effective date deferred until December 31, 2006. 3 November 22, 2004. [FR Doc. E6-21887 Filed 12-21-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2002-0093; FRL-8260-7] RIN 2060-AN10 National Emission Standards for Hazardous Air Pollutants: Surface Coating of Automobiles and Light-Duty Trucks AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action on amendments to the National Emission Standards for Hazardous Air Pollutants: Surface Coating of Automobiles and Light-Duty Trucks (Automobiles and Light-Duty Trucks NESHAP) which were promulgated on April 26, 2004, under the authority of section 112(d) of the Clean Air Act. The direct final rule amendments provide the option of including surface coating of heavier motor vehicles under this rule. This action also makes direct final rule amendments to the National Emission Standards for Hazardous Air Pollutants for Surface Coating of Miscellaneous Metal Parts and Products (Miscellaneous Metal Parts NESHAP) and the National Emission Standards for Hazardous Air Pollutants for Surface Coating of Plastic Parts and Products (Plastic Parts NESHAP) to maintain consistency between these rules and the Automobiles and Light-Duty Trucks NESHAP. DATES: The direct final rule is effective on February 20, 2007 without further notice, unless EPA receives adverse written comment by January 22, 2007 or by February 5, 2007 if a public hearing is requested by January 2, 2007. If adverse comments are received, EPA will publish a timely withdrawal in the **Federal Register** indicating which amendments, sections, or paragraphs will become effective and which are being withdrawn due to adverse comment. If anyone contacts EPA requesting to speak at a public hearing, a public hearing will be held on January 8, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2002-0093. All documents in the docket are listed in the *www.regulations.gov index* . Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air and Radiation Docket, EPA West, Room B-102, 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 and Radiation Docket is

(202)566-1742. Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to make hand deliveries or visit the Public Reading Room to view documents. Consult EPA's **Federal Register** notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at *http://www.epa.gov/epahome/dockets.htm* for current information on docket operations, locations, and telephone numbers. The Docket Center's mailing address for U.S. mail and the procedure for submitting comments to *www.regulations.gov* are not affected by the flooding and will remain the same. *Public Hearing.* If a public hearing is held, it will be held at 10 a.m. at the EPA's Environmental Research Center Auditorium, Research Triangle Park, NC, or at an alternate site nearby. FOR FURTHER INFORMATION CONTACT: For further information contact Mr. David Salman, EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143-01), Research Triangle Park, NC 27711; telephone number

(919)541-0859; fax number

(919)541-0246; e-mail address: *salman.dave@epa.gov.* SUPPLEMENTARY INFORMATION: *Regulated Entities.* Categories and entities potentially regulated by this action include: Category NAICS * code Examples of potentially regulated entities Industry 336111 Automobile manufacturing. 336112 Light truck and utility vehicle manufacturing. 336211 Motor vehicle body manufacturing. 336120 Heavy duty truck manufacturing. * North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria of the rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. *World Wide Web (WWW).* In addition to being available in the docket, an electronic copy of today's direct final Automobiles and Light-Duty Trucks NESHAP will also be available on the WWW through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of the NESHAP will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg/.* The TTN at EPA's Web site provides information and technology exchange in various areas of air pollution control. *Comments.* We are publishing the direct final rule amendments without prior proposal because we view the amendments as noncontroversial and do not anticipate adverse comments. However, in the Proposed Rules section of this **Federal Register** notice, we are publishing a separate document that will serve as the proposal to amend the Automobiles and Light-Duty Trucks NESHAP (40 CFR part 63, subpart IIII), the Miscellaneous Metal Parts NESHAP (40 CFR 63, subpart MMMM), and the Plastic Parts NESHAP (40 CFR 63, subpart PPPP) if material adverse comments are filed. Instructions for submitting comments are provided in that document. If we receive any material adverse comments on one or more distinct amendments, we will publish a timely withdrawal in the **Federal Register** informing the public which provisions will become effective, and which provisions are being withdrawn due to material adverse comment. We will address all public comments in a subsequent final rule, should the EPA determine to issue one. Any of the distinct amendments in today's direct final rule for which we do not receive material adverse comment will become effective on the previously mentioned date. We will not institute a second comment period on the direct final rule amendments. Any parties interested in commenting must do so at this time. *Judicial Review.* Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of the direct final rule amendments is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by February 20, 2007. Under section 307(d)(7)(B) of the CAA, only an objection to the direct final rule amendments that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by the direct final rule amendments may not be challenged separately in any civil or criminal proceeding brought by EPA to enforce these requirements. *Outline.* The information presented in this preamble is organized as follows: I. Background II. Amendments III. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Analysis 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 Risks and Safety Risks H. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Congressional Review Act I. Background On April 26, 2004, we issued the final Automobiles and Light-Duty Trucks NESHAP (69 FR 22602). The final NESHAP established standards to control organic hazardous air pollutant

(HAP)emissions from new and existing automobile and light-duty truck surface coating operations. Today's action amends the final rule by adding an option to include the coating of heavier vehicle bodies and parts for heavier vehicles in the affected source under this NESHAP. We are also making direct final rule amendments to the Miscellaneous Metal Parts NESHAP (40 CFR part 63, subpart MMMM), and the Plastic Parts NESHAP (40 CFR part 63, subpart PPPP) to maintain consistency between these rules and the Automobiles and Light-Duty Trucks NESHAP (40 CFR part 63, subpart IIII). None of the amendments will have any discernable effect on the stringency of the rules. II. Amendments The discussion in this section of the preamble pertains to the Automobiles and Light-Duty Trucks NESHAP (40 CFR part 63, subpart IIII) unless otherwise noted as applying to the Miscellaneous Metal Parts NESHAP (40 CFR part 63, subpart MMMM) or the Plastic Parts NESHAP (40 CFR part 63, subpart PPPP). Each of these rules has an early 2007 compliance date for existing sources. The main focus of the final rule is the coating of new automobile or new light-duty truck bodies, and body parts for new automobiles or new light-duty trucks. The final rule also allows the owner or operator of an automobile and light-duty truck coating affected source to include in that affected source any coating operation which applies coatings to parts intended for use in new automobiles or new light-duty trucks or as aftermarket repair or replacement parts for automobiles or light-duty trucks which would otherwise be subject to the Miscellaneous Metal Parts NESHAP (40 CFR part 63, subpart MMMM) or the Plastic Parts NESHAP (40 CFR part 63, subpart PPPP). This makes it possible for such a facility to demonstrate compliance with requirements applicable to all of these activities within the final rule rather than having to demonstrate compliance with two or three rules. Some automobile and light-duty truck surface coating facilities also coat heavier vehicle bodies or body parts for heavier vehicles. The heavier vehicle bodies or body parts for heavier vehicles may be coated using the same equipment and materials that are used to coat automobile and light-duty truck bodies or body parts for automobiles and light-duty trucks. The final rule does not currently provide an option for including the coating of heavier vehicle bodies or body parts for heavier vehicles in the automobile and light-duty truck affected source. Lacking such an option, a facility which coats automobiles or light-duty trucks and also coats heavier vehicle bodies or body parts for heavier vehicles would be subject to the Automobiles and Light-Duty Trucks NESHAP (40 CFR part 63, subpart IIII) and also would be subject to the Miscellaneous Metal Parts NESHAP (40 CFR part 63, subpart MMMM) or the Plastic Parts NESHAP (40 CFR part 63, subpart PPPP). Adding the option of including the coating of heavier vehicle bodies or body parts for heavier vehicles in the automobile and light-duty truck affected source would make it possible for such a facility to demonstrate compliance with requirements applicable to all of these activities within the final rule rather than having to demonstrate compliance with two or three rules. Some facilities that coat only heavier vehicle bodies or body parts for heavier vehicles have paint shops that are designed and operated in the same manner as paint shops that are used to coat automobile and light-duty truck bodies and body parts for automobiles and light-duty trucks. The permit requirements for these heavier vehicle paint shops are often structured in the same way as permit requirements for automobile and light-duty truck paint shops. The volatile organic compounds

(VOC)compliance demonstration procedures that are used for these heavier vehicle paint shops are often the same as the VOC compliance demonstration procedures that are used for automobile and light-duty truck paint shops and very similar to the HAP compliance demonstration procedures in the Automobiles and Light-Duty Trucks NESHAP (40 CFR part 63, subpart IIII). Without the option of including these heavier vehicle paint shops under the Automobiles and Light-Duty Trucks NESHAP (40 CFR part 63, subpart IIII), these heavier vehicle paint shops will have to demonstrate compliance both with VOC requirements using automobile and light-duty truck procedures and HAP requirements using very different procedures as specified in the other NESHAP. Adding the option of including the coating of heavier vehicle bodies or body parts for heavier vehicles in the automobile and light-duty truck affected source would make it possible for such a facility to demonstrate compliance with HAP requirements using the very similar procedures in the Automobiles and Light-Duty Trucks NESHAP (40 CFR part 63, subpart IIII). We, therefore, have amended the final rule by adding an option to include the coating of heavier vehicle bodies, body parts for heavier vehicles, and parts for heavier vehicles in the affected source under this NESHAP. The direct final amendments use the term “other motor vehicle” which is defined as “a self-propelled vehicle designed for transporting persons or property on a street or highway that has a gross vehicle weight rating over 8,500 pounds.” The emissions limits in the Automobiles and Light-Duty Trucks NESHAP (40 CFR 63, subpart IIII) are more stringent than the emissions limits in the Miscellaneous Metal Parts NESHAP (40 CFR part 63, subpart MMMM) and the Plastic Parts NESHAP (40 CFR part 63, subpart PPPP). As a result, any heavier vehicle coating operation that is included in this NESHAP will be required to achieve the same or greater organic HAP emission reduction than it would have been required to achieve under the other NESHAP. The first monthly compliance period for existing sources in the Automobiles and Light-Duty Trucks NESHAP begins on April 26, 2007 and ends on May 31, 2007. The first 12-month compliance period for existing sources in the Miscellaneous Metal Parts NESHAP begins on January 2, 2007 and ends on February 29, 2008. The first 12-month compliance period for existing sources in the Plastic Parts NESHAP begins on April 19, 2007 and ends on May 31, 2008. We believe the earlier start of the first compliance period for existing sources in the Miscellaneous Metal Parts NESHAP is inconsequential, particularly since the first compliance period for existing sources in the Automobiles and Light-Duty Trucks NESHAP will end sooner and continuous compliance with the Automobiles and Light-Duty Trucks NESHAP will be demonstrated on a monthly basis as opposed to the 12-month rolling basis used in the other two rules. We have amended the Miscellaneous Metal Parts NESHAP (40 CFR part 63, subpart MMMM) to allow the coating of metal heavier vehicle bodies, metal body parts for heavier vehicles, and metal parts for heavier vehicles to comply with the Automobiles and Light-Duty Trucks NESHAP (40 CFR 63, subpart IIII) in lieu of complying with the Miscellaneous Metal Parts NESHAP. We have amended the Plastic Parts NESHAP (40 CFR part 63, subpart PPPP) to allow the coating of heavier plastic vehicle bodies, plastic body parts for heavier vehicles, and plastic parts for heavier vehicles to comply with the Automobiles and Light-Duty Trucks NESHAP (40 CFR 63, subpart IIII) in lieu of complying with the Plastic Parts NESHAP. III. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review The Office of Management and Budget

(OMB)initially notified EPA that it considered this action a “significant regulatory action” within the meaning of Executive Order 12866 (58 FR 51735, October 4, 1993). Nevertheless, after reviewing information regarding this action, OMB waived review of this action. B. Paperwork Reduction Act This action does not impose any new information collection burden. This action adds optional provisions to the final standards. OMB has previously approved the information collection requirements contained in the existing regulations (40 CFR part 63, subpart IIII) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, *et seq.* , and has assigned OMB control number 2060-0550, EPA ICR No. 2045.02. A copy of the Information Collection Request

(ICR)may be obtained from Ms. Susan Auby by mail at the Office of Environmental Information, Collection Strategies Division (2822), EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, by e-mail at *auby.susan@epa.gov* , or by calling

(202)566-1672. You also may download a copy from the Internet at *http://www.epa.gov/icr.* Include the ICR number in any correspondence. 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 Analysis EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with the direct final rule amendments. For purposes of assessing the impacts of today's direct final rule on small entities, small entity is defined as:

(1)A small business according to Small Business Administration size standards for companies identified by NAICS codes 336111 (automobile manufacturing) and 336112 (light truck and utility vehicle manufacturing) with 1,000 or fewer employees;

(2)a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Based on the above definition, there are no small entities presently engaged in automobile and light-duty truck surface coating. After considering the economic impacts of the final rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. This is based on the observation that the final rule affects no small entities since none are engaged in the surface coating of automobiles and light-duty trucks. 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 to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that the direct final rule amendments do 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. The direct final rule amendments provide the option of including surface coating of heavier motor vehicles under this rule and, therefore, add no additional burden on sources. Thus, the direct final rule amendments are not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13132, Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” The direct final rule amendments do not have federalism implications. They 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. No facilities subject to the direct final rule amendments are owned by State or local governments. Therefore, State and local governments will not have any direct compliance costs resulting from the direct final rule amendments. Furthermore, the direct final rule amendments do not require these governments to take on any new responsibilities. Thus, Executive Order 13132 does not apply to the direct final rule amendments. F. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The direct final rule amendments do not have tribal implications as specified in Executive Order 13175. They will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, because we are not aware of any Indian tribal governments or communities affected by the direct final rule amendments. Thus, Executive Order 13175 does not apply to the direct final rule amendments. G. Executive Order 13045, Protection of Children From Environmental Health Risks 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, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. The direct final rule amendments are not subject to Executive Order 13045 because they are based on technology performance and not on health or safety risks. H. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use The direct final rule amendments are not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because they are not likely to have a significant adverse effect on the supply, distribution, or use of energy. The direct final rule amendments provide the option of including surface coating of heavier motor vehicles under this rule and, therefore, add no additional burden on sources. We have, therefore, concluded that the direct final rule amendments are not likely to have any adverse energy effects. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards

(VCS)in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. The direct final rule amendments do not involve technical standards. Therefore, EPA is not considering the use of any VCS. 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 the direct final rule amendments and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the direct final rule amendments in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . The direct final rule amendments are not a “major rule” as defined by 5 U.S.C. 804(2). The direct final rule amendments will be effective on February 20, 2007. List of Subjects in 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, and Reporting and recordkeeping requirements. Dated: December 18, 2006. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, Title 40, chapter I, part 63 of the Code of Federal Regulations is amended 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 IIII—[Amended] 2. Section 63.3080 is revised to read as follows: § 63.3080 What is the purpose of this subpart? This subpart establishes national emission standards for hazardous air pollutants (NESHAP) for facilities which surface coat new automobile or new light-duty truck bodies or body parts for new automobiles or new light-duty trucks. This subpart also establishes NESHAP for facilities which surface coat new other motor vehicle bodies or body parts for new other motor vehicles which you choose to include in your affected source pursuant to § 63.3082(c). This subpart also establishes requirements to demonstrate initial and continuous compliance with the emission limitations. 3. Section 63.3081 is amended by revising paragraph

(b)to read as follows: § 63.3081 Am I subject to this subpart?

(b)You are subject to this subpart if you own or operate a new, reconstructed, or existing affected source, as defined in § 63.3082, that is located at a facility which applies topcoat to new automobile or new light-duty truck bodies or body parts for new automobiles or new light-duty trucks, and that is a major source, is located at a major source, or is part of a major source of emissions of hazardous air pollutants (HAP). You are subject to this subpart if you own or operate a new, reconstructed, or existing affected source, as defined in § 63.3082, in which you choose to include, pursuant to § 63.3082(c), any coating operations which apply coatings to new other motor vehicle bodies or body parts for new other motor vehicles; parts intended for use in new automobiles, new light-duty trucks, or new other motor vehicles; or aftermarket repair or replacement parts for automobiles, light-duty trucks, or other motor vehicles; and the affected source is located at a facility that is a major source, is located at a major source, or is part of a major source of emissions of HAP. A major source of HAP emissions is any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit any single HAP at a rate of 9.07 megagrams

(Mg)(10 tons) or more per year or any combination of HAP at a rate of 22.68 Mg (25 tons) or more per year. 4. Section 63.3082 is amended by revising paragraphs

(c)and

(e)to read as follows: § 63.3082 What parts of my plant does this subpart cover?

(c)In addition, you may choose to include in your affected source, and thereby make subject to the requirements of this subpart, any coating operations, as defined in § 63.3176, which would otherwise be subject to the National Emission Standards for Hazardous Air Pollutants for Surface Coating of Miscellaneous Metal Parts and Products (subpart MMMM of this part) or the National Emission Standards for Hazardous Air Pollutants for Surface Coating of Plastic Parts and Products (subpart PPPP of this part) which apply coatings to new other motor vehicle bodies or body parts for new other motor vehicles, parts intended for use in new automobiles, new light-duty trucks, or new other motor vehicles, or aftermarket repair or replacement parts for automobiles, light-duty trucks, or other motor vehicles.

(e)An affected source is a new affected source if:

(1)You commenced its construction after December 24, 2002; and

(2)The construction is of a completely new automobile and light-duty truck assembly plant, automobile and light-duty truck paint shop, automobile and light-duty truck topcoat operation, other motor vehicle assembly plant, other motor vehicle paint shop, or other motor vehicle topcoat operation where previously no automobile and light-duty truck assembly plant, automobile and light-duty truck assembly paint shop, or automobile and light-duty truck assembly topcoat operation had existed; and

(i)No other motor vehicle assembly plant, other motor vehicle paint shop, or other motor vehicle topcoat operation had existed previously; or

(ii)No previously existing other motor vehicle assembly plant, other motor vehicle paint shop, or other motor vehicle topcoat operation is subject to this subpart; or

(iii)If the facility was previously not a major source for HAP, no previously existing other motor vehicle assembly plant, other motor vehicle paint shop, or other motor vehicle topcoat operation is made part of the affected source under this subpart. 5. Section 63.3110 is amended by revising paragraph

(b)to read as follows: § 63.3110 What notifications must I submit?

(b)You must submit the Initial Notification required by § 63.9(b) for a new or reconstructed affected source no later than 120 days after initial startup or 120 days after June 25, 2004, whichever is later. For an existing affected source, you must submit the Initial Notification no later than 1 year after April 26, 2004. Existing sources that have previously submitted notifications of applicability of this rule pursuant to § 112(j) of the CAA are not required to submit an Initial Notification under § 63.9(b) except to identify and describe all additions to the affected source made pursuant to § 63.3082(c). If you elect to include the surface coating of new other motor vehicle bodies, body parts for new other motor vehicles, parts for new other motor vehicles, or aftermarket repair or replacement parts for other motor vehicles in your affected source pursuant to § 63.3082(c) and your affected source has an initial startup before February 20, 2007, then you must submit an Initial Notification of this election no later than 120 days after initial startup or February 20, 2007, whichever is later. 6. Section 63.3176 is amended by: a. Removing the definition of “Automobile and/or light-duty truck assembly plant”. b. Adding in alphabetical order definitions for “Automobile and light-duty truck assembly plant,” “Other motor vehicle,” and “Other motor vehicle assembly plant” to read as follows: § 63.3176 What definitions apply to this subpart? *Automobile and light-duty truck assembly plant* means a facility which assembles automobiles or light-duty trucks, including coating facilities and processes. *Other motor vehicle* means a self-propelled vehicle designed for transporting persons or property on a street or highway that has a gross vehicle weight rating over 8,500 pounds. You may choose to make the coating of other motor vehicles subject to this subpart pursuant to § 63.3082(c). *Other motor vehicle assembly plant* means a facility which assembles other motor vehicles, including coating facilities and processes. Subpart MMMM—[Amended] 7. Section 63.3881 is amended by revising the last sentence of paragraph

(d)to read as follows: § 63.3881 Am I subject to this subpart?

(d)* * * Surface coating operations on metal parts or products (e.g., parts for motorcycles or lawnmowers) not intended for use in automobiles, light-duty trucks, or other motor vehicles as defined in § 63.3176 cannot be made part of your affected source under subpart IIII of this part. Subpart PPPP—[Amended] 8. Section 63.4481 is amended by revising the last sentence of paragraph

(d)to read as follows: § 63.4481 Am I subject to this subpart?

(d)* * * Surface coating operations on plastic parts or products (e.g., parts for motorcycles or lawnmowers) not intended for use in automobiles, light-duty trucks, or other motor vehicles as defined in § 63.3176 cannot be made part of your affected source under subpart IIII of this part. [FR Doc. E6-21975 Filed 12-21-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0935; FRL-8105-6] Flucarbazone-sodium; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a tolerance for combined residues of flucarbazone-sodium, 4,5-dihydro-3-methoxy-4-methyl-5-oxo-N-[[2(trifluoromethoxy)phenyl] sulfonyl-1H-1,2,4-triazole 1-carboxamide, sodium salt and its N-desmethyl metabolite in or on wheat, forage at 0.30 parts per million (ppm); wheat, grain at 0.01 ppm; wheat, hay at 0.10 ppm; and wheat, straw at 0.05 ppm; and combined residues of flucarbazone-sodium and its metabolites converted to 2-(trifluoromethoxy) benzene sulfonamide and calculated as flucarbazone-sodium in or on milk at 0.005 ppm; meat and meat byproducts (excluding liver) of cattle, goats, hogs, horses, and sheep at 0.01 ppm; and liver of cattle, goats, hogs, horses, and sheep at 1.5 ppm. Arysta LifeScience North America Corporation, 15401 Weston Parkway, Suite 150, Cary, NC 27513 requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended by the Food Quality Protection Act of 1996 (FQPA). DATES: This regulation is effective December 22, 2006. Objections and requests for hearings must be received on or before February 20, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION ). ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2006-0935. All documents in the docket are listed in the index for the docket. 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 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 Docket Facility is open 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: Jim Tompkins, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)305-5697; e-mail address: *tompkins.jim@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 an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. 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. 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. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.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* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0935. in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before February 20, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0935, 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. II. Background and Statutory Findings In the **Federal Register** of October 20, 2006 (70 FR 61969) (FRL-8099-1), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F7112) by Arysta LifeScience North America Corporation, 15401 Weston Parkway, Suite 150, Cary, NC 27513. The petition requested that 40 CFR 180.562 be amended by establishing a tolerance for combined residues of flucarbazone-sodium, 4,5-dihydro-3-methoxy-4-methyl-5-oxo-N-[2(trifluoromethoxy)phenyl] sulfonyl-1H-1,2,4-triazole 1-carboxamide, sodium salt and its N-desmethyl metabolite in or on wheat, forage at 0.30 parts per million (ppm); wheat, grain at 0.01 ppm; wheat, hay at 0.10 ppm; and wheat, straw at 0.05 ppm; and combined residues of flucarbazone-sodium and its metabolites converted to 2-(trifluoromethoxy) benzene sulfonamide and calculated as flucarbazone-sodium in or on milk at 0.005 ppm; meat and meat byproducts (excluding liver) of cattle, goats, hogs, horses, and sheep at 0.01 ppm; and liver of cattle, goats, hogs, horses, and sheep at 1.5 ppm. That notice included a summary of the petition prepared by Arysta LifeScience North America Corporation, the registrant. There were no comments received in response to the notice of filing. Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . III. Aggregate Risk Assessment and Determination of Safety Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with section 408(b)(2) of FFDCA, for a tolerance for combined residues of flucarbazone-sodium, 4,5-dihydro-3-methoxy-4-methyl-5-oxo-N-[2(trifluoromethoxy)phenyl] sulfonyl-1H-1,2,4-triazole 1-carboxamide, sodium salt and its N-desmethyl metabolite in or on wheat, forage at 0.30 parts per million (ppm); wheat, grain at 0.01 ppm; wheat, hay at 0.10 ppm; and wheat, straw at 0.05 ppm; and combined residues of flucarbazone-sodium and its metabolites converted to 2-(trifluoromethoxy) benzene sulfonamide and calculated as flucarbazone-sodium in or on milk at 0.005 ppm; meat and meat byproducts (excluding liver) of cattle, goats, hogs, horses, and sheep at 0.01 ppm; and liver of cattle, goats, hogs, horses, and sheep at 1.5 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by flucarbazone-sodium as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at *http://docket.epa.gov/edkpub/index.jsp* . B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor

(UF)is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify non-threshold hazards such as cancer. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk, estimates risk in terms of the probability of occurrence of additional cancer cases. More information can be found on the general principles EPA uses in risk characterization at *http://docket.epa.govedkpub/index.jsp* . A summary of the toxicological endpoints for flucarbazone-sodium used for human risk assessment is discussed in Unit III.B. of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364) (FRL-6745-9). C. Exposure Assessment 1. *Dietary exposure from food and feed uses* . Tolerances have been established (40 CFR 180.562) for the combined residues of flucarbazone-sodium, 4,5-dihydro-3-methoxy-4-methyl-5-oxo-N-[2(trifluoromethoxy)phenyl] sulfonyl-1H-1,2,4-triazole 1-carboxamide, sodium salt and its N-desmethyl metabolite in or on wheat, forage at 0.30 parts per million (ppm); wheat, grain at 0.01 ppm; wheat, hay at 0.10 ppm; and wheat, straw at 0.05 ppm; and combined residues of flucarbazone-sodium and its metabolites converted to 2-(trifluoromethoxy) benzene sulfonamide and calculated as flucarbazone-sodium in or on milk at 0.005 ppm; meat and meat byproducts (excluding liver) of cattle, goats, hogs, horses, and sheep at 0.01 ppm; and liver of cattle, goats, hogs, horses, and sheep at 1.5 ppm. Risk assessments were conducted by EPA to assess dietary exposures from flucarbazone-sodium in food as follows: i. *Acute exposure* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. The Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: A summary of the acute dietary exposure assessment is discussed in Unit III.C of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364). ii. *Chronic exposure* . In conducting this chronic dietary risk assessment the (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1989-1992 Nationwide (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: A summary of the chronic dietary exposure assessment is discussed in Unit III.C. of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364). iii. *Cancer* . A summary of the dietary exposure assessment is discussed in Unit III.C. of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364). iv. *Anticipated residue and percent crop treated

(PCT)information* . Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must pursuant to section 408(f)(1) require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. For the present action, EPA will issue such Data Call-Ins for information relating to anticipated residues as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Such Data Call-Ins will be required to be submitted no later than 5 years from the date of issuance of this tolerance. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for flucarbazone-sodium in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of flucarabazone-sodium. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://docket.epa.gov/edkpub/index.jsp* . Based on the Generic Expected Environmental Concentration (GENEEC) and Screening Concentrations in Groundwater (SCI-GROW) models, the estimated environmental concentrations

(EECs)of flucarbazone-sodium for acute exposures are estimated to be 1.42 parts per billion

(ppb)for surface water and 0.2 ppb for ground water. The EECs for chronic exposures are estimated to be 1.25 ppb for surface water and 0.2 ppb for ground water. 3. *From non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Flucarbazone-sodium is not registered for use on any sites that would result in residential exposure. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to flucarbazone-sodium and any other substances and flucarbazone-sodium does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that flucarbazone-sodium has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative* . D. Safety Factor for Infants and Children 1. *In general* . Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a Margin of exposure analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional safety factor value based on the use of traditional uncertainty factors and/or special FQPA safety factors, as appropriate. 2. *Prenatal and postnatal sensitivity* . A summary of the prenatal and postnatal sensitivity assessment is discussed in the **Federal Register** of September 29, 2000 (65 FR 58364). 3. *Conclusion* . There is a complete toxicity data base for flucarbazone-sodium and exposure data are complete or are estimated based on data that reasonably accounts for potential exposures. A summary of the safety factor is discussed in Unit III.D. of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364). E. Aggregate Risks and Determination of Safety 1. *Acute risk* . A summary of the acute risk assessment is discussed in Unit III.E. of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364). 2. *Chronic risk* . A summary of the chronic risk assessment is discussed in Unit III.E. of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364). 3. *Short-term risk* . A summary of the short-term risk assessment is discussed in Unit III.E. of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364). 4. *Intermediate-term risk* . A summary of the intermediate-term risk assessment is discussed in Unit III.E. of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364). 5. *Aggregate cancer risk for U.S. population* . A summary of the aggregate cancer risk for U.S. population assessment is discussed in Unit III.E. of the final rule published in the **Federal Register** of September 29, 2000 (65 FR 58364). 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to flucarbazone-sodium residues. IV. Other Considerations A. Analytical Enforcement Methodology The petitioner has proposed residue analytical methods for tolerance enforcement in wheat and livestock commodities. The analytical enforcement method for wheat employs accelerated solvent extraction, clean-up using solid phase extraction columns followed by detection and quantitation by liquid chromatography/tandem mass spectroscopy (LC/MS/MS). The analytical method for livestock commodities is a common moiety method which measures residues of flucarbazone-sodium (MKH 6562) in animal tissues and milk by extracting and hydrolyzing MKH 6562 and MKH 6562-related residues to MKH 6562 sulfonamide. Detection is achieved using negative ion electrospray mass spectrometry using deuterated MKH 6562 sulfonamide as an internal standard. Both methods have undergone successful validations by independent laboratories and have been accepted by the Agency. The analytical standards for these methods are available from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:

(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits A default Maximum Residue Limit

(MRL)of 0.01 ppm has been established in Canada for residues of flucarbazone-sodium and its N-desmethyl metabolite on wheat grain. This value is consistent with the tolerance being established in the United States on wheat grain. There are no Codex MRLs for this compound on wheat. Therefore, no compatibility issues exist with Codex in regard to the U.S. tolerances discussed in this review. V. Conclusion Therefore, the tolerance is established for combined residues of flucarbazone-sodium, 4,5-dihydro-3-methoxy-4-methyl-5-oxo-N-[2(trifluoromethoxy)phenyl] sulfonyl-1H-1,2,4-triazole 1-carboxamide, sodium salt and its N-desmethyl metabolite in or on wheat, forage at 0.30 parts per million (ppm); wheat, grain at 0.01 ppm; wheat, hay at 0.10 ppm; and wheat, straw at 0.05 ppm; and combined residues of flucarbazone-sodium and its metabolites converted to 2-(trifluoromethoxy) benzene sulfonamide and calculated as flucarbazone-sodium in or on milk at 0.005 ppm; meat and meat byproducts (excluding liver) of cattle, goats, hogs, horses, and sheep at 0.01 ppm; and liver of cattle, goats, hogs, horses, and sheep at 1.5 ppm. VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget

(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001). This final 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)(Public Law 104-4). Nor does it require any 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 OMB review or any Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq.* ) do not apply. The Agency hereby certifies that this rule will not have significant negative economic impact on a substantial number of small entities. In addition, the Agency has determined that this action will not have a substantial direct effect on 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, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, 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.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. VII. 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, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: December 14, 2006. Lois Rossi, Director, Registration 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), 346a and 371. 2. Section 180.562, paragraph

(a)is revised to read as follows: §180.562 Flucarbazone-sodium; tolerances for residues.

(a)*General* . Tolerances are established for combined residues of the herbicide flucarbazone-sodium, 4,5-dihydro-3-methoxy-4-methyl-5-oxo-N-[[2(trifluoromethoxy)phenyl] sulfonyl]-1H-1,2,4-triazole 1-carboxamide, sodium salt) and its N-desmethyl metabolite; and its metabolites converted to 2-(trifluoromethoxy)benzene sulfonamide and calculated as flucarbazone-sodium in or on the following food commodities: Commodity Parts per million Cattle, liver 1.50 Cattle, meat 0.01 Cattle, meat byproducts except liver 0.01 Goat, liver 1.50 Goat, meat 0.01 Goat, meat byproducts except liver 0.01 Hog, liver 1.50 Hog, meat 0.01 Hog, meat byproducts except liver 0.01 Horse, liver 1.50 Horse, meat 0.01 Horse, meat by-products except liver 0.01 Milk 0.005 Sheep, liver 1.50 Sheep, meat 0.01 Sheep, meat byproducts except liver 0.01 Wheat, forage 0.30 Wheat, grain 0.01 Wheat, hay 0.10 Wheat, straw 0.05 [FR Doc. E6-21843 Filed 12-21-06; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 372 [TRI-2005-0073; FRL-8260-4] RIN 2025-AA14 Toxics Release Inventory Burden Reduction Final Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is revising the Toxics Release Inventory

(TRI)reporting requirements to reduce burden while continuing to provide valuable information to the public, and promote recycling and treatment as alternatives to disposal and other releases. TRI reporting is required by section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and section 6607 of the Pollution Prevention Act (PPA). This rule expands non-Persistent Bioaccumulative and Toxic (non-PBT) chemical eligibility for Form A by raising the eligibility threshold to 5,000 pounds of total annual waste management (i.e., releases, recycling, energy recovery, and treatment for destruction) provided total annual releases of the non-PBT chemical comprise no more than 2,000 pounds of the 5,000-pound total waste management limit. This rule also allows, for the first time, limited use of Form A for PBT chemicals when total annual releases of a PBT chemical are zero and the total annual amount of the PBT chemical recycled, combusted for energy, and treated for destruction does not exceed 500 pounds. This rule, however, retains the current exclusion of dioxin and dioxin-like compounds from Form A eligibility. By structuring Form A eligibility for both PBT chemicals and non-PBT chemicals in a way that favors recycling and treatment over disposal and other releases, today's rule encourages facilities to reduce their releases and ensures that valuable information will continue to be provided to the public pursuant to the purposes of section 313 of EPCRA and section 6607 of PPA. Further, to guard against situations where large non-production related amounts are not reported on Form R and to provide greater consistency between PBT chemical and non-PBT chemical Form A eligibility, this rule redefines the non-PBT Form A eligibility threshold to include non-production related amounts reported in Section 8.8 of Form R. DATES: This rule is effective on January 22, 2007. The first reports with the revised reporting requirements will be due on or before July 1, 2007, for reporting year (i.e., calendar year) 2006. ADDRESSES: EPA has established a docket for this action under Docket ID No. TRI-2005-0073. All documents in the docket are listed in the docket index at *http://www.regulations.gov.* Although listed in the index, some information is not publicly available, i.e., confidential business information

(CBI)or other information, the disclosure of which 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 at www.regulations.gov or in hard copy at the OEI Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the OEI Docket is

(202)566-1752. **Note** : The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA's **Federal Register** notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at *http://www.epa.gov/epahome/dockets.htm* for current information on docket status, locations and telephone numbers. FOR FURTHER INFORMATION CONTACT: For more specific information or technical questions relating to this rule, contact Marc Edmonds, Toxics Release Inventory Program Division, Office of Information Analysis and Access (2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-566-0758; fax number: 202-566-0741; e-mail: *edmonds.marc@epa.gov;* or Larry Reisman, Toxics Release Inventory Program Division, Office of Information Analysis and Access (2844T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-566-0751; fax number: 202-566-0741; e-mail: *reisman.larry@epa.gov.* The press point of contact for this rule is Suzanne Ackerman, Office of Public Affairs, 202-564-7819. For general inquiries relating to the Toxics Release Inventory or more information on EPCRA section 313, contact the TRI Information Center; toll free: 1-800-424-9346, in Virginia and Alaska: 703-412-9810, toll free TDD: 1-800-553-7672, or TDD DC area local: 703-412-3323. SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? This action applies to facilities that submit annual reports under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and section 6607 of the Pollution Prevention Act (PPA). It specifically applies to those that submit the TRI Form R or Form A Certification Statement. (See *http://www.epa.gov/tri/report/index.htm#forms* for detailed information about EPA's TRI reporting forms.) To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372, subpart B, of Title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the individuals listed in the preceding FOR FURTHER INFORMATION CONTACT section. This action is also relevant to those who utilize EPA's TRI information, including State agencies, local governments, communities, environmental groups and other non-governmental organizations, as well as members of the general public. II. What is EPA's Statutory Authority for Taking This Action? This rule is being issued under sections 313(f)(2) and 328 of EPCRA, 42 U.S.C. 11023(f)(2) and 11048. In general, section 313 of EPCRA and section 6607 of the PPA require owners and operators of facilities in specified Standard Industrial Classification

(SIC)codes that manufacture, process, or otherwise use a listed toxic chemical in amounts above specified threshold levels to report certain facility-specific information about such chemicals, including the annual releases and other waste management quantities. This information is submitted on EPA Form 9350-1 (Form R) or EPA Form 9350-2 (Form A) and compiled in an annual Toxics Release Inventory (TRI). Each covered facility must file a separate Form R for each listed chemical manufactured, processed, or otherwise used in excess of applicable reporting thresholds, which were initially established in section 313(f)(1). 42 U.S.C. 11023(f)(1). Congress set statutory default reporting thresholds of 25,000 pounds for manufacturing, 25,000 pounds for processing, and 10,000 pounds for the otherwise use of a listed toxic chemical in EPCRA section 313(f)(1). Id. EPA has authority to revise the threshold amounts pursuant to section 313(f)(2); however, such revised threshold amounts must obtain reporting on a substantial majority of total releases of the chemical at all facilities subject to section 313. 42 U.S.C. 11023(f)(2). In addition, Congress granted EPA broad rulemaking authority to allow the Agency to fully implement the statute. EPCRA section 328 authorizes the “Administrator [to] prescribe such regulations as may be necessary to carry out this chapter.” 42 U.S.C. 11048. Using these provisions, EPA may, at the Administrator's discretion, modify reporting thresholds on classes of chemicals or categories of facilities. EPA has raised the reporting thresholds for a class of chemical reports once previously. In 1994, EPA finalized a rule that created the Form A Certification Statement (59 FR 61488). See 40 CFR 372.27. That rule raised the reporting thresholds for manufacturing, processing, and the otherwise use of listed toxic chemicals to one million pounds for a category of facilities whose total annual reportable amount for a particular chemical was 500 pounds or less. In that rulemaking, EPA discussed the value of information that is collected on the Form A as follows: “EPA believes that the proposed annual certification will provide information relating to the location of facilities manufacturing, processing, or otherwise using these chemicals, that the chemicals are being manufactured, processed, or otherwise used at current reporting thresholds, and that chemical releases and transfers for the purpose of treatment and/or disposal are [500 pounds or less] per year (i.e., within a range of zero to [500] pounds per year).” 59 FR 38527. EPA further indicated that the information collected on the Form A helped to ensure that the revised thresholds continued to obtain reporting on a substantial majority of releases. The burden reduction approach in today's rule is modeled after the approach taken in the 1994 Form A rulemaking. Today's rule expands Form A eligibility for non-PBT chemicals and allows limited Form A eligibility for PBT chemicals by raising the reporting threshold for eligible chemicals at specifically defined categories of facilities. Eligibility is determined on a chemical-by-chemical basis, rather than a facility-wide basis. Under the expanded Form A eligibility, facilities qualifying for the raised threshold for a given chemical will continue to file an annual certification statement in place of a Form R. Through its narrow definition of the category of facilities eligible for the raised threshold and through the information collected on the certification statements, EPA is ensuring that reporting under the raised threshold will continue to “obtain reporting on a substantial majority of total releases of the chemical at all facilities subject to the requirements of this section.” III. What Is the Background and Purpose of These Actions? A. What Are the Toxics Release Inventory Reporting Requirements and Who Do They Affect? Pursuant to section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), certain facilities that manufacture, process, or otherwise use specified toxic chemicals in amounts above reporting threshold levels must submit annually to EPA and to designated State officials toxic chemical release forms containing information specified by EPA. 42 U.S.C. 11023. These reports must be filed by July 1 of each year for the previous calendar year. In addition, pursuant to section 6607 of the Pollution Prevention Act (PPA), facilities reporting under section 313 of EPCRA must also report pollution prevention and waste management data, including recycling information, for such chemicals. 42 U.S.C. 13106. These reports are compiled and stored in EPA's database known as the Toxics Release Inventory (TRI). Regulations at 40 CFR part 372, subpart B, require facilities that meet all of the following criteria to report: • The facility has 10 or more full-time employee equivalents (i.e., a total of 20,000 hours worked per year or greater; see 40 CFR 372.3); and • The facility is included in a North American Industry Classification System (NAICS) Code listed at 40 CFR 372.23 or under Executive Order 13148, Federal facilities regardless of their industry classification; and • The facility manufactures (defined to include importing), processes, or otherwise uses any EPCRA section 313

(TRI)chemical in quantities greater than the established thresholds for the specific chemical in the course of a calendar year. Facilities that meet the criteria must file a Form R report or, in some cases, may submit a Form A Certification Statement, for each listed toxic chemical for which the criteria are met. As specified in EPCRA section 313(a), the report for any calendar year must be submitted on or before July 1 of the following year. For example, reporting year 2004 data should have been postmarked on or before July 1, 2005. The list of toxic chemicals subject to TRI reporting can be found at 40 CFR 372.65. This list is also published every year as Table II in the current version of the Toxics Release Inventory Reporting Forms and Instructions. The current TRI chemical list contains 581 individually-listed chemicals and 30 chemical categories. B. What Led to the Development of This Rule? Throughout the history of the TRI Program, the Agency has implemented measures to reduce the TRI reporting burden on the regulated community while still ensuring the provision of valuable information to the public that fulfills the purposes of the TRI program. “Burden” is the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. 44 U.S.C. 3502(2). That 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. Through a range of compliance assistance activities, such as the Toxic Chemical Release Inventory Reporting Forms and Instructions (which is updated every year), industry training workshops, chemical-specific and industry-specific guidance documents, and the TRI Information Center (a call hotline), the Agency has shown a commitment to enhancing the quality and consistency of reporting and assisting those facilities that must comply with EPCRA section 313. In addition, EPA has made considerable progress in reducing burden through technology-based processes. One example of a technology-based process is electronic reporting using the Toxics Release Inventory—Made Easy (TRI-ME) software, an interactive, user-friendly software tool that guides facilities through TRI reporting. Other technology-based examples include the use of EPA's Central Data Exchange

(CDX)for form submission, and the use of data submitted to the Agency through other EPA programs to pre-populate TRI data fields. These measures have reduced the time, cost, and complexity of existing environmental reporting requirements, while enhancing reporting effectiveness and efficiency and continuing to provide useful information to the public that fulfills the purposes of the TRI program. The burden-reducing measure of particular relevance to today's rule is the Form A Certification Statement, which EPA established through rulemaking in 1994. This burden-reducing measure is based on an alternate threshold for quantities manufactured, processed, or otherwise used by those facilities with relatively low annual reportable amounts of TRI chemicals. Pursuant to this 1994 rule, a facility can use an alternate, higher reporting threshold for a non-PBT chemical for which it has an annual reportable amount not exceeding 500 pounds. The annual reportable amount

(ARA)was defined as the total of the quantity released at the facility, the quantity treated at the facility, the quantity recovered at the facility as a result of recycling operations, the quantity combusted for the purpose of energy recovery at the facility, and the quantity transferred off-site for recycling, energy recovery, treatment, and/or disposal. This combined total corresponds to the quantity of the toxic chemicals in production-related waste (i.e., the sum of sections 8.1 through and including section 8.7 on the Form R). Pursuant to the 1994 rule, the reporting threshold for chemicals with an ARA less than or equal to 500 pounds is one million pounds manufactured, processed, or otherwise used, considered individually. Beginning with the 1995 reporting year, facilities that meet the ARA eligibility requirement and do not exceed the one-million-pound reporting threshold for a particular toxic chemical can so certify by using Form A, and thus avoid having to submit a detailed Form R. The Form A serves to certify that a facility is not subject to Form R reporting for a specific toxic chemical (Toxic Chemical Release Inventory Reporting Forms and Instructions (EPA 260-B-04-001), pages 1-2). The primary difference between information contained on Form R and the Form A Certification Statement is that the Form R provides details of releases and other waste management (e.g., total quantity of releases to air, water, and land; and on- and off-site recycling, treatment, and combustion for energy recovery), while the Form A does not. If the reporter meets the criteria for using the Form A, the reporter need only report the name of the chemical and certain facility identification information. The Form A serves as a range report which, to date, has told the public that the total production related waste for the chemical is between zero and 500 pounds. Several chemicals can be reported on each Form A. In 1999, when EPA lowered reporting thresholds in the PBT rule, EPA determined that allowing the Form A certification for PBT chemicals at that time would be inconsistent with the intent of expanded PBT chemical information (64 FR 58732, October 29, 1999) and so disallowed the use of Form A for PBT chemicals. EPA cited concerns over releases and other waste management of these chemicals at low levels and said that, based on the information available to the Agency at that time, it believed that the level of information from Form A was insufficient to do meaningful analyses on PBT chemicals (Id. at 58733). EPA also stated “the Agency believes that it is appropriate to collect and analyze several years worth of data at the lowered thresholds before EPA considers developing a new alternate threshold and reportable quantity appropriate for PBT chemicals.” (Id. at 58732). In an effort to explore additional burden reduction opportunities, EPA conducted a TRI Stakeholder Dialogue between November 2003 and February 2004. A summary of this dialogue is available at *http://www.epa.gov/tri/programs/stakeholders/outreach.htm.* The dialogue process focused on identifying improvements to the TRI reporting process and exploring a number of burden reduction options associated with TRI reporting. As a result of the Stakeholder Dialogue and subsequent comments from stakeholders, the Agency identified several burden reducing options. These options fall into three broad categories:

(1)Relatively minor changes or modifications to the reporting forms and the TRI-ME software;

(2)expanding Form A eligibility; and

(3)reducing the frequency of reporting for some or all reports. EPA decided to address the three categories of changes through separate actions, the first of which was promulgated in July 2005. In July 2005, the Agency promulgated the TRI Reporting Forms Modification Rule (70 FR 39931, July 12, 2005), which streamlined the current forms by eliminating some fields and simplifying completion of others. The changes eliminated some redundant or seldom-used data elements from Forms A and R, and modified others that could be shortened, simplified, or otherwise improved to reduce the time and costs required to complete and submit annual TRI reports. The changes also improved data consistency and reliability by replacing some elements on the forms with information extracted from the EPA's Facility Registry System (FRS), which includes data on most facilities subject to environmental reporting requirements across EPA programs. Today's rule, the second of the three categories of changes, which the Agency has referred to as the “Phase 2” burden reduction rulemaking, expands eligibility for Form A reporting for non-PBT chemicals, and allows, for the first time, limited Form A reporting for PBT chemicals with zero releases. In developing the proposed rule for Phase 2, EPA considered input from stakeholders, and identified a number of criteria to guide the development of the approach. The criteria used by the Agency to develop the proposal continued to play a guiding role in the development of today's final rule. These criteria include providing meaningful data to users that fulfill the purposes of the TRI program; providing an overall burden savings in hours needed for reporting; providing benefits to both non-PBT and PBT reporting facilities, as appropriate; ensuring that the approach is relatively easy to implement; and creating incentives consistent with national pollution prevention policy. In a separate notice issued on October 4, 2005, the same day the Phase 2 Proposed Rule was published in the **Federal Register** , EPA announced its intent to explore potential approaches for modifying the reporting frequency for facilities that report to TRI and its notification to Congress, as required by 42 U.S.C. 11023(i), of its intent to initiate a rulemaking to modify TRI reporting frequency. This statutory provision requires one-year advance notification to Congress before initiating such a rulemaking. Many commenters who responded to the Phase 2 proposed rule to expand Form A eligibility also voiced concerns over any modification to the TRI reporting frequency. Because these comments are outside the scope of the Phase 2 rulemaking, EPA has not responded to them as part of today's rule on expanded Form A eligibility. With regard to TRI reporting frequency, the Agency has decided not to pursue any changes in the TRI reporting frequency at this time. While EPA does not intend to take any further actions concerning the TRI reporting frequency, EPA will adhere to the process outlined in 42 U.S.C. 11023(i)(5) and provide 12 months advance notice to Congress if the Agency decides in the future to initiate changes to the TRI reporting frequency. C. What Reporting Requirement Changes Did EPA Propose? 1. Form A Eligibility—PBT Chemicals In October 2005, EPA issued a proposed rule that would allow facilities reporting zero or not applicable

(NA)for disposal or other releases of a PBT chemical, 1 except dioxin and dioxin-like compounds, to use the Form A Certification Statement in lieu of Form R provided the facilities do not exceed a one-million-pound manufacture, process, or otherwise use activity threshold for the specific PBT chemical and provided the facilities have 500 pounds or less of total other waste management quantities for the chemical. The other waste management quantities include all recycling, energy recovery, and treatment for destruction. As it relates to the Form R, this proposed approach allows a facility to use Form A for a specific PBT chemical when zero or NA is reported for items a, b, c, and d of Section 8.1 (Total Disposal or Other Releases) and the facility does not have any non-production-related releases for the PBT chemical included in Section 8.8 (quantities released to the environment as a result of remedial actions, catastrophic events, or one-time events not associated with production processes). Under the proposed approach, the facility may have other waste management quantities in Sections 8.2 through 8.8 totaling 500 pounds or less and still qualify for the Form A Certification Statement. In summary, as proposed, facilities must manufacture, process, or otherwise use no more than one million pounds of a PBT chemical, have zero disposal or other releases in Section 8.1 and 8.8 for the chemical, and have 500 pounds or less of total other waste management quantities in Sections 8.2 through 8.8 for the chemical. The Agency has referred to this 500-pound PBT other waste management sum of Sections 8.2 + 8.3 + 8.4 + 8.5 + 8.6 + 8.7+ 8.8 for Form A eligibility as the PBT Reportable Amount (PRA). 1 Allowing Form A for PBT chemicals affects those chemicals identified by EPA as “chemicals of special concern” in the October 1999 PBT rule to identify chemicals subject to a lower reporting threshold. Currently, “chemicals of special concern” include only certain chemicals that have been found to be “persistent, bioaccumulative, and toxic (PBT).” Therefore, for the reader's convenience, in the proposed rule EPA referred to the chemicals in 40 CFR 372.28 as “PBT chemicals.” In today's final rule EPA continues to use the term “PBT chemical” in lieu of “chemicals of special concern” for improved readability. For purposes of the proposed rule as well as today's final rule, the Agency refers to non-PBT chemicals, when referring to the larger group of TRI chemicals that are not PBTs (i.e., not chemicals of special concern). Should the Agency identify additional chemicals of special concern in the future, at that time the Agency will consider whether it is appropriate to extend these or other burden reduction measures to those chemicals. As discussed in the proposal, the inclusion of Section 8.8 waste management amounts in PBT chemical Form A eligibility is different from the approach taken to date for non-PBT chemical Form A eligibility. Section 8.8 of the Form R is for release and other waste management quantities of toxic chemicals associated with remedial actions, catastrophic events, or one-time events not associated with production processes. As explained in the proposed rule, the Agency examined data from the 2003 reporting year and determined that some of the reporters that had zero releases also reported quantities in Section 8.8 which appear to be associated with ongoing CERCLA-related or RCRA-related remediation. If any of these quantities are disposal or other releases, the facility would not qualify for Form A. It is possible, however, that some of these quantities represent other waste management activities carried out to deal with waste created from non-production-related events. Based on the assumption that local communities may be concerned about the progress of these activities and may wish to track non-release quantities in Section 8.8 exceeding 500 pounds using the Form R, EPA proposed that both release and non-release Section 8.8 amounts be considered in determining Form A eligibility for PBT chemicals. EPA acknowledged in the proposal that using a different basis for reportable amount for PBT chemicals than has been used for non-PBT chemicals could potentially confuse reporters. As a practical matter, however, the inclusion of Section 8.8 in Form A eligibility determinations for PBT chemicals only affects a small number of facilities. In the proposed rule, the Agency requested comment on whether Section 8.8 management amounts should be included in the definition of the ARA for PBTs. The proposed rule retained the current exclusion of dioxin and dioxin-like compounds from Form A eligibility. As explained in the proposal, because of the high toxicity of some dioxin and dioxin-like compounds and the wide variation in toxicity among forms of dioxin, in a prior action, EPA proposed adding toxic equivalency

(TEQ)reporting for the dioxin and dioxin-like compounds category (70 FR 10919, March 7, 2005). EPA proposed TEQ reporting in response to requests from TRI reporters that EPA create a mechanism for facilities to report TEQ data to provide important context for the dioxin and dioxin-like compounds release data. In addition, EPA believes that the public will benefit from the additional context and comparability of data provided by TEQ reporting. Accordingly, in the proposed burden reduction rule, the Agency decided to wait until the dioxin TEQ rulemaking is finalized and until the Agency has appropriate data before considering whether this class of PBT chemicals should be considered for Form A eligibility. In the proposed rule, EPA stated that it is focusing on providing burden relief for smaller businesses that have zero disposal or other releases. EPA referred to the Stakeholder Dialogue, where some commenters pointed out that there are reporters with no releases but who send small amounts of TRI chemicals into more desirable management techniques like recycling or energy recovery. Because the Agency encourages reuse and recycling, it decided to explore whether a clearly demarcated group of such reporters could be defined. EPA reasoned that by expanding Form A eligibility as described in the proposed rule, the Agency would be providing burden relief for PBT reporters with no disposal or other releases and small quantities of other waste management activities reportable in sections 8.2 through 8.8. The Agency believes that this approach will encourage facilities to reduce their releases of PBT chemicals to zero and, for those facilities that are already not releasing any PBT chemicals, to accomplish further source reduction so that their other waste management totals are low enough to use this option (500 pounds or less). The Agency balanced this pollution prevention incentive with the needs of TRI data users who use this information for tracking and reporting trends in recycling, waste treatment, and energy recovery, and decided that limited Form A eligibility for PBT chemicals with zero releases would be an appropriate approach for providing burden relief to this group of reporters while minimizing the amount of useful detailed data that would no longer be reported on Form R. With regard to data that would no longer be reported on Form R, the Agency analyzed TRI data submitted in previous reporting years. Based on its analysis of the data, the Agency expected the group of PBT chemicals that would qualify for the proposed approach to represent a total of approximately 2,700 Form Rs. This number of forms was expected to save approximately 47,000 hours (or $2.1 million) of reporting burden (Economic Analysis of Toxics Release Inventory Burden Reduction Proposed Rule, EPA, September 2005). Of these 2,700 Forms Rs with zero release amounts, approximately 2,100 also reflected zeros for the other waste management activities of recycling, energy recovery, and treatment for destruction. Accordingly, only about 600 Form Rs reported non-zero amounts for at least one of the sections 8.2 through 8.8 (Economic Analysis of Toxics Release Inventory Burden Reduction Proposed Rule, EPA, August, 2005). As discussed in the proposal, those forms with some other waste management quantity are primarily forms for lead and lead compounds; polycyclic aromatic compounds (PACs), including benzo(g,h,i)perylene; and mercury and mercury compounds. At the time of the proposal, these three chemicals accounted for about 98% of the eligible reports with non-zero waste management quantities. Prior to proposing, EPA analyzed the data TRI collects on these three chemicals. EPA conducted an extensive analysis of lead reporters in conjunction with the 2002 Public Data Release. 2 Based on this analysis, EPA found that the detailed information that would no longer be reported on Form R under the proposed approach would be information on the recycling of small amounts of lead; in particular, the off-site transfer of lead waste to recyclers. EPA further noted that in addition to the requirement of zero releases as proposed, facilities managing lead and lead compounds cannot be conducting the activities of energy recovery or treatment for destruction because metals may not be reported in those categories. 3 Similarly, for mercury and mercury compounds, recycling 4 is the only permissible waste management activity in section 8 of Form R for those facilities that would qualify for Form A under the proposal. Finally, for PACs and benzo(g,h,i)perylene, EPA explained in the proposal its understanding that facilities that produce small amounts of these chemicals may burn the waste in a boiler or industrial furnace for energy recovery or treatment for destruction via incineration. As a consequence of the extremely high destruction efficiencies achieved in burning, combustion in these units can result in zero releases for purposes of TRI reporting. Since the PBT rule, which lowered reporting thresholds for PACs, was published, the Agency has adopted new Clean Air Act

(CAA)Maximum Achievable Control Technology

(MACT)standards for hazardous waste combustion facilities that, among other things, help to ensure that 99.99% of these chemicals are destroyed during either energy recovery or incineration. These standards cover hazardous waste incinerators and cement kilns. (See 40 CFR parts 63 and 264.) The MACT standards also control products of incomplete combustion that may result. With a PBT ARA limiting the total PACs treated to 500 pounds or less, releases at the lowest allowable efficiency could be no more than 0.01% (or a maximum of .05 pound) for facilities that must comply with these strict standards. The Guidance for Reporting Toxic Chemicals: Polycyclic Aromatic Compounds Category (EPA 260-9-01-01, August 2001) allows for this level of PACs to be rounded to zero. If, for any reason, treatment of PACs does result in a release of even one pound, the facility would no longer be eligible. So, while very small amounts of releases may occur from facilities combusting 500 pounds or less, the PAC chemicals are unlikely to be released at levels which would require a non-zero response in section 8.1 and, therefore, the completion of Form R. 2 See “Lead: TRI Lead and Lead Compounds Reporting Years 2000-2002” (U.S. EPA) at *http://www.epa.gov/tri/tridata/tri02/index.htm* . 3 The Agency's Toxic Chemical Release Inventory Reporting Forms and Instructions (EPA 260-B-05-001, January 2005, Appendix B) states that it is not appropriate to report energy recovery and treatment for destruction for metals that are part of metal compound categories with the exception of barium and barium compounds. When a facility reports metals and their associated metal compound categories it only reporits the parent metal portion of the compounds. The parent metal cannot be destroyed nor can it be burned for energy recovery so these matals should not be reported as such. 4 Ibid. 2. Form A Eligibility—Non-PBT Chemicals As proposed, a facility reporting on a non-PBT chemical 5 would be able to use Form A if the facility meets the one-million-pound manufacture, process, or otherwise use activity threshold and the facility has 5,000 pounds or less of total “annual reportable amount” (ARA), defined as the combined total quantity released at the facility, treated at the facility, recovered at the facility as a result of recycling operations, combusted for the purpose of energy recovery at the facility, and amounts transferred from the facility to off-site locations for the purpose of recycling, energy recovery, treatment, and/or disposal. This combined total ARA corresponds to the quantity of the toxic chemical in production-related waste, i.e., the sum of section 8.1 through and including section 8.7 of the Form R. This proposed 5,000-pound ARA represents an increase from the 500-pound ARA threshold that has been in effect since the 1994 Form A rulemaking. 5 For the purposes of the proposed rule and the final rule, “non-PBT chemicals” indicates all listed TRI chemicals that are not “chemicals of special concern,” which are listed in 40 CFR 372.28. As part of the proposed rule, the Agency requested comment on whether the ARA for non-PBT chemicals should be modified to include section 8.8 management information. As discussed above, section 8.8 of the Form R collects release and other waste management quantities of toxic chemicals resulting from remedial actions, catastrophic events, or one-time events not associated with production processes. Recognizing that a different basis for the reportable amount for PBT chemicals and non-PBT chemicals poses some risk of confusion among reporters, EPA specifically asked for comment on whether the ARA for non-PBT chemicals should be modified to include section 8.8 amounts, thereby making the proposed PBT annual reportable amount, which includes section 8.8 amounts, and the non-PBT annual reportable amount more consistent. In the proposal, EPA explained that after several years of reporting experience, the Agency believes it is appropriate to increase the ARA to expand eligibility for Form A for non-PBT chemicals. During the stakeholder dialogue, a number of stakeholders suggested increasing the ARA to 5,000 pounds. In addition to proposing an ARA of 5,000 pounds, EPA also analyzed and requested comment on 1,000-pound and 2,000-pound ARA levels. Recognizing that the 500-pound ARA, which has been available to reporters since the 1994 rulemaking (59 FR 61488), gained a measure of success in reducing reporting burden, the Agency stated in the proposal that it believes a higher ARA would provide additional burden relief to facilities and at the same time continue to allow the TRI program to provide valuable information to the public that fulfills the purposes of the TRI program. From the standpoint of burden relief, the Agency's analysis at the time of the proposal indicated that a 5,000-pound ARA would extend Form A eligibility to around 12,000 non-PBT Form Rs, saving approximately 117,000 hours (or $5.2 million) of reporting burden. For more information about the burden reduction expected from the proposed rule, refer to the Economic Analysis of Toxics Release Inventory Burden Reduction Proposed Rule, EPA, September 2005. Even with this proposed increase in eligible forms, the percentage of total release and other waste management pounds that would be newly eligible for Form A under a 5,000-pound ARA would be less than 1% of total release and other waste management amounts reported annually on Form R nationwide. Specifically, under the proposed 5,000-pound threshold, the Agency expected approximately 14 million pounds of releases (0.34% of total non-PBT releases) and 25 million pounds of total production-related waste (0.11% of non-PBT total production-related waste) to become newly eligible for Form A reporting. The Agency also considered the impact the proposed rule would have at the local level and asked for comment on whether changes to the ARA would adversely impact local community uses of the information. In the proposal, EPA looked at the number of Zip Codes affected by a 5,000-pound ARA, as well as the number and identity of chemicals where all Form R reports could convert to Form A Certification Statements at the higher threshold. Detailed analyses of the impacts on communities and individual chemicals are provided in the Economic Analysis for the proposed rule (Economic Analysis of Toxics Release Inventory Burden Reduction Proposed Rule, EPA, September 2005). As part of the proposal, EPA also summarized the potential impacts on reporting that could result from raising the ARA to 1,000 pounds and 2,000 pounds. Prior to proposing, EPA weighed the value of Form A against the potential loss of detailed Form R information. Data users know that a facility filing a Form A is a potential source of releases and other waste management activities. As discussed in the proposed rule, data users would know that for any non-PBT chemical submitted on a Form A, the total for releases (Section 8.1) and total production related waste (the sum of Sections 8.1 through and including Section 8.7) does not exceed 5,000 pounds. In other words, each Form A would serve as a range report which informs the public that total releases, as well as total production related waste (which includes releases), is in the range of zero to 5,000 pounds. TRI data users are currently able to access Form A facility information via Envirofacts and TRI Explorer ( *http://www.epa.gov/triexplorer/* ). Under the proposal, data users would still be able to obtain national information such as the number of Form As filed each year by individual chemical. Using EZ Query in Envirofacts ( *http://www.epa.gov/enviro/* ), data users would be able to access individual chemical Form As along with the TRI Facility Identification Numbers (TRIFIDs) and names of the facilities submitting Form As. Existing Form A utilization was another factor considered by the Agency prior to issuing the proposed rule. The Agency observed that facilities use Form A for only slightly over half of the forms (54%) potentially eligible. As discussed in the proposal, there are a number of possible reasons for this estimated utilization rate. Some facilities may be using in excess of the one-million-pound alternate threshold 6 (e.g. users of feedstock chemicals like nitrapyrin and producers of pesticides or pharmaceuticals) and, therefore, they are ineligible for Form A. Other facilities may report on Form R out of a desire to showcase their pollution prevention efforts. Still other facilities may find the Form R to be an efficient mechanism for tracking their material balances. A facility, having collected all of this information, may also be making a Form R submission to demonstrate good environmental stewardship. Regardless of the factors that prompt facilities to use Form R when they may be eligible for Form A, the Agency does not believe the rate of Form A utilization would be significantly higher at a 5,000-pound threshold than it is at the current 500-pound ARA threshold. 6 For the purposes of the proposed rule and the final rule, “non-PBT chemicals” indicates all listed TRI chemicals that are not “which are listed in 40 CFR 372.28.” IV. Summary of This Final Rule Today's final rule allows facilities to use Form A in lieu of Form R for a PBT chemical as proposed when there are no annual releases of the PBT chemical, the facility's total annual amount of the chemical recycled, combusted for energy recovery, and/or treated for destruction does not exceed 500 pounds, and the facility has not manufactured, processed, or otherwise used more than one million pounds of the PBT chemical. As it relates to the Form R data elements, this final rule allows a facility to use Form A instead of Form R for a specific PBT chemical when zero or not applicable

(NA)is reported for items a, b, c, and d of Section 8.1 (Total Disposal or Other Releases), the facility does not have any non-production-related releases of the PBT chemical included in Section 8.8 (quantity released to the environment as a result of remedial actions, catastrophic events, or one-time events not associated with production processes), and the total amount reported for recycling, energy recovery, and/or treatment for destruction in Section 8.2 through and including Section 8.8 does not exceed 500 pounds. Further, for the same reasons discussed in the proposal (and discussed above in Unit III.C.1), this final rule retains the current exclusion of dioxin and dioxin-like compounds from Form A eligibility. Based on comments received and information analyzed since the proposed rule, EPA decided to finalize a hybrid approach to the proposed expansion of Form A eligibility for non-PBT chemicals. Today's rule expands non-PBT chemical eligibility for Form A by raising the eligibility threshold to 5,000 pounds for total annual waste management (i.e., releases, recycling, energy recovery, and treatment for destruction), as proposed, provided total annual releases of the non-PBT chemical comprise no more than 2,000 pounds of the 5,000-pound total waste management limit. While the proposed rule also advanced a 5,000-pound threshold, it did not place any limit on the amount of releases that a facility may consider toward the 5,000-pound threshold amount. In response to comments on data use impacts at the local level from the loss of detailed Form R information, and in particular, the loss of detailed Form R release information, EPA has decided to place a 2,000-pound limit on releases of non-PBT chemicals. By placing a 2,000-pound limit on the amount of releases that may be applied to the 5,000-pound Form A eligibility threshold, EPA is preserving on Form R a significant amount of the release and other waste management information that was expected to be eligible for Form A under the proposal. At the same time, by limiting the release portion of the non-PBT ARA to 2,000 pounds, EPA is providing an incentive for facilities to recycle or use other preferred forms of waste management other than release. In addition, based on comments regarding consistency between Form A eligibility for PBT chemicals and Form A eligibility for non-PBT chemicals, as well as concerns over the potential loss of detailed Form R information on large, accidental releases, EPA has decided to include Section 8.8 non-production related quantities in the calculations to determine whether facilities have met the 5,000-pound ARA for non-PBT chemical Form A eligibility. Accordingly, pursuant to this rule, the Form A ARA for non-PBT chemicals is now comprised of the sum of Section 8.1 through and including Section 8.8. In summary, today's final rule allows facilities to use Form A in lieu of Form R for a non-PBT chemical when the facility's total annual amount of the chemical released, recycled, combusted for energy recovery, and/or treated for destruction does not exceed 5,000 pounds, the facility's total annual releases of the chemical do not exceed 2,000 pounds, and the facility has not manufactured, processed, or otherwise used more than one million pounds of the non-PBT chemical. As it relates to the Form R data elements, this final rule allows a facility to consider Form A for a non-PBT chemical when the sum of Section 8.1 through and including Section 8.8 does not exceed 5,000 pounds and the sum of amounts reported for items a, b, c, and d of Section 8.1 (Total Disposal or Other Releases) and any non-production-related releases reported in Section 8.8 (Quantity released to the environment as a result of remedial actions, catastrophic events, or one-time events not associated with production processes) does not exceed 2,000 pounds. V. Summary of Public Comments and EPA Responses EPA received well over 100,000 comments in response to the proposed rule. After accounting for about a dozen mass mail campaigns, docket staff identified approximately 5,000 distinct comments. These 5,000 comments are listed separately in the EPA docket for this rulemaking, and along with supporting materials for this rule, individual comments can be accessed at *http://www.regulations.gov* under docket ID TRI-2005-0073. A. Comments on Form A Eligibility—PBT Chemicals Some commenters supporting EPA's proposed option to extend Form A reporting to PBT chemicals favor the option because it would provide burden relief but no actual release data would be lost. Some commenters also state that the proposal will not compromise public health or reduce the ability to plan for emergency responses, and that most people are interested solely in releases to the environment. Other commenters suggest that EPA's proposal would encourage pollution prevention, as facilities would work to eliminate releases and minimize waste generation of PBT chemicals in order to qualify for Form A. On the other hand, some commenters express general opposition to the proposed option for PBT chemicals. Some of those in opposition suggest that PBT chemicals are too persistent and dangerous to human and environmental health for the reporting requirements to be relaxed and therefore, they recommend that the Agency maintain the current reporting requirements for these chemicals. EPA agrees with commenters who stated that the proposed approach for allowing Form A for PBT chemicals provides incentives that would result in positive environmental impacts. By limiting Form A eligibility to facilities with zero PBT releases and 500 pounds or fewer other waste management quantities (i.e., recycling, energy recovery, and treatment for destruction), EPA is encouraging facilities to reduce releases and other waste management to meet these targets. For chemicals such as lead and mercury, this approach will encourage recycling and/or source reduction, both desirable waste management techniques. Further, because the proposed rule requires zero releases for PBT chemical Form A eligibility, there will be no loss of detailed Form R release information; therefore, the proposal does not affect the use of TRI release data to gauge direct impacts on public health. Some commenters express opposition to expanding the use of Form A to PBT chemicals because it would result in some important non-release data no longer being reported on Form R. Concerns include the potential serious health impacts associated with these chemicals (especially lead, PACs and mercury) and thus the need to have public data on even small quantities managed by facilities. Comments also express concerns about the loss of the ability to assess potential liabilities of facilities that handle PBTs. EPA believes that allowing Form A for PBT chemicals as conditioned in the proposal will not result in an appreciable reduction in the data reported to the Agency. As EPA stated in the preamble to the proposal, it anticipates this rule will have a minimal impact on the national totals for waste management. The Agency estimates that 0.01% of total waste management will go unreported on Form R as a result of this component of the rule. (Economic Analysis of Toxics Release Inventory Burden Reduction Proposed Rule, EPA September, 2005). The quantity of lead recycled and eligible for this option would be approximately 0.0084% of the lead recycled by all TRI reporters. The corresponding figures for PACs and mercury are 0.023% and 0.3%, respectively. As EPA stated in the proposed rule, it expects that 2,700 PBT chemical reports would qualify for Form A under this rule. On an individual facility basis, data users will know that the facility filing Form A for a PBT chemical has zero releases and between zero and 500 pounds of combined recycling, energy recovery, and treatment for destruction. In addition, data users will know that the facility has manufactured, processed or otherwise used the PBT chemical above the relevant thresholds and did not exceed the one-million-pound alternate threshold for Form A. EPA believes that this is an appropriate level of detail for public reporting for these substances when there are zero releases and waste management totals are under 500 pounds. Several commenters express opposition to the proposed option for PBT chemicals because the proposal provides minimal burden reduction while losing important publicly available data. One commenter estimates that the average cost savings per facility would be only $1,035, which the commenter argues does not justify the expected loss of information from the rule. Another commenter estimates that 77% of facilities eligible to use Form A for PBTs report zero for both releases and other waste management and therefore do not save burden by switching to Form A. Other commenters support EPA's proposed option for PBTs because of the helpful burden reduction for facilities that have zero releases. These commenters state that the burden of reporting is substantial and that burden relief is needed, especially for reporters that have zero releases and are managing their chemicals in an environmentally responsible manner. Some commenters also suggested that additional burden reduction could be provided by allowing use of Form A for PBT chemical reports with small, non-zero release quantities. EPA believes that the rule will result in significant burden reduction without losing crucial information. Facilities that use Form A for a PBT chemical will save an estimated 15.5 hours of burden for each Form A submitted instead of a Form R. From the standpoint of total burden, the Agency estimates that the approximately 1,800 facilities eligible for this option will save approximately 36,000 hours (or $1.8 million) of reporting burden. In response to comments that the burden savings is minimal because the majority of facilities eligible for this option have no waste management quantities to report (i.e., zeros in Sections 8.1 through 8.8), such facilities will still realize burden savings from no longer having to complete all of the Form R data elements (e.g., the Production Ratio in Part II, Section 8.9; and the maximum amount of the TRI chemical on-site at any one time during the year in Part II, Section 4). While a higher PBT-release level would provide additional burden reduction, EPA believes that a zero release amount under current TRI reporting requirements strikes an appropriate balance between paperwork burden and the provision of valuable information consistent with the goals and statutory purposes of the TRI program. EPA notes that under current TRI reporting guidance, facilities are already allowed to round small PBT chemical releases to zero. As discussed in the preamble to the PBT chemical final rule (64 FR 58672, October 29, 1999), facilities are required to report PBT chemical releases greater than 0.1 pound (except dioxins). In that preamble, the Agency stated that it believes that facilities may be able to calculate their estimates of releases to one-tenth of a pound and that such guidance is consistent with the requirements of sections 313(g) and (h). B. Comments on Form A Eligibility—Non-PBT Chemicals 1. Overview Commenters who support EPA's proposed expansion of Form A eligibility for non-PBT chemicals assert that the proposed rule would provide significant burden relief from TRI reporting—especially for small facilities. These proponents argue that this relief would be significant despite the need to calculate releases and other waste management amounts to determine if they qualify for Form A. Other commenters opposed to the proposed rule focused on the impact at the local level from the detailed Form R waste management information that would no longer be reported on Form R. While many of these commenters recognize that the potential non-reporting of detailed Form R waste management information represents less than 1% of the total waste management reported nationwide on Form R, they argue that at the local level, a 5,000-pound Form A range of release and other waste management information will adversely affect the ability of data users to perform local trend analyses, monitor the performance of individual facilities, and more generally, meet the intended purpose of the data collection to inform the public, government, and other data users about releases of toxic chemicals to the environment. Many commenters gave examples of local data uses that could be affected by the proposed rule such as identifying pollution-prevention opportunities, conducting risk analyses, identifying trends in toxic exposures, conducting spatial analyses of toxic hazards, setting environmental and public-health policy, and evaluating trends in the environmental performance of individual companies. After a thorough consideration of commenters' concerns about the potential non-reporting of detailed Form R information, EPA has decided to modify the proposed 5,000-pound total waste management threshold for Form A by placing a 2,000-pound limit on releases of non-PBT chemicals eligible for Form A. In today's final rule, in order for a facility to use the Form A Certification Statement for a non-PBT chemical, the facility cannot have more than 5,000 pounds of total annual waste-management (i.e., releases, recycling, energy recovery, and treatment for destruction) of that chemical, and the contribution of total annual releases toward the 5,000-pound total annual waste management amount must be no greater than 2,000 pounds. This approach is partially responsive to those commenters who expressed a preference for a lower ARA than the proposed 5,000-pound cutoff. Under today's rule, Form A continues to serve as a range report and with regard to releases, it will inform the public that a facility filing a Form A for a specific non-PBT chemical has total annual releases of that chemical in the range of zero to 2,000 pounds. With regard to total waste management (which includes releases), today's rule increases the current range of zero to 500 pounds to zero to 5,000 pounds. The Agency believes that today's approach effectively balances concerns associated with potential non-reporting of detailed Form R release information against total paperwork burden and the promotion of recycling and treatment as alternatives to disposal and other releases. Specifically, by finalizing a Form A eligibility threshold that favors the waste management activities of recycling, energy recovery, and treatment for destruction over disposal and other releases, this rule responds to comments about the proposed rule's failure to promote improvements in environmental performance. By placing a 2,000-pound limit on the amount of non-PBT chemical releases that may be applied to the 5,000-pound threshold for Form A eligibility, today's rule actively encourages facilities to make improvements in environmental performance consistent with national pollution-prevention policy. That is, it creates incentives for facilities to move away from disposal and other releases towards treatment and recycling. In addition, by including all waste management activities in the Form A eligibility criteria, EPA is encouraging facilities above the 5,000-pound ARA to reduce their total waste management in order to qualify for Form A. 2. Comments on the Impact of the Annual Reportable Amount

(ARA)Criterion on Environmental Performance Some commenters state that recycling, energy recovery, and treatment for destruction should be excluded from the ARA to provide facilities with an incentive for pollution-prevention activities. EPA believes that it has addressed this comment in the final rule by providing one threshold (2,000 pounds) which considers only releases, and a second threshold (5,000 pounds) that includes releases to the environment and other waste management activities. EPA believes that by including these other waste management activities in the 5,000-pound eligibility threshold, it is promoting pollution prevention. Section 6602 of the Pollution Prevention Act states that “pollution should be prevented or reduced at the source whenever feasible.” Accordingly, the Agency has decided to continue to include all waste management activities under the Form A threshold determination in the expectation that the cost savings associated with using Form A instead of Form R would provide incentives to promote source reduction. Further, by limiting the release portion of the 5,000-pound ARA to 2,000 pounds, today's rule structures Form A eligibility in a way that encourages treatment, recycling, and/or energy recovery over releases, which is consistent with national policy under the Pollution Prevention Act. One commenter opposes increasing the 500-pound ARA because the Agency has not yet defined the Section 8 waste management data elements. To support this position, the commenter asserts that there are significant data-quality problems with the Section 8 data. This commenter believes EPA should not consider raising the Form A threshold until the Agency fixes these data-quality problems. EPA has provided various forms of compliance assistance (e.g., guidance, training sessions, a call center, a TRI Web site, reporting software) to improve data quality and to promote consistent TRI reporting. Recognizing that there still is room for improvement, the Agency intends to continue its outreach efforts to improve data quality through reporting compliance. Nevertheless, EPA believes that today's final rule appropriately balances the paperwork burdens of reporting against the promotion of pollution prevention and the requirement to provide the public and other data users with valuable information that is consistent with the goals and statutory purposes of the TRI program. 3. Comments on the Rule's Impact on Local Risk Screening Analyses Many commenters opposed to the proposed rule assert that small releases that may no longer be reported on Form R as a result of the proposed rule do not necessarily pose less risk at the local level than the larger releases that will continue to be reported on Form R. Some of these commenters discuss the negative impact the proposed rule would have on county-level risk rankings generated by the Agency's Risk Screening Environmental Indicators

(RSEI)software program, which relies on TRI release data. Some commenters describe specific county-level risk rankings generated by RSEI for which the order and composition of rankings would change under the proposed rule. Another comment asserts that the RSEI tool can be used to show that the proposed rule would not adversely affect the use of TRI data to identify toxic releases that pose significant risk at the local level because 99% of counties would not have significant changes in reported risk. Further, some commenters state that allowing facilities that report minimal releases to utilize Form A could improve the quality of the TRI database by focusing attention on detailed Form R release information that represents a potential risk to the public. They also noted that the small reduction in detailed information would be far outweighed by the benefits of the proposed rule, in terms of reduced costs and paperwork affecting the economic competitiveness of small businesses and the counties they serve. EPA believes that while RSEI is a valuable screening tool for identifying risk-related situations of high potential concern, and which warrant further evaluation, it makes assumptions about chemical toxicity and exposure pathways that may not hold true at the local level where a more robust risk assessment could be undertaken depending on the intended use of the data. RSEI analysis alone does not provide a detailed or quantitative assessment of risk (e.g., excess cases of cancer). By itself, RSEI is not designed as a substitute for more comprehensive, site-specific risk assessments. More information on the functionality and limitations of RSEI can be found at *http://www.epa.gov/oppt/rsei.* 4. Environmental Justice

(EJ)Concerns A number of commenters raised concerns about the proposed rule's potential Environmental Justice

(EJ)impacts. Specifically, commenters are concerned about the potential health effects and other impacts from releases near minority and low-income populations. EPA has given careful consideration to these comments. In the preamble to the proposed rule, the Agency concluded (referring to both the PBT and non-PBT portions), that “EPA has no indication that either option will disproportionately impact minority or low-income communities.” After publication of the proposed rule, and in response to a request for information from three members of the U.S. House of Representatives, the Agency estimated that minorities comprise 31.8% of the U.S. population and 41.8% of the population residing within one mile of facilities that filed at least one Form R for reporting year 2003. Minorities make up an estimated 43.5% of the population residing within one mile of facilities that would qualify for Form A in reporting year 2003 under the proposed rule. EPA also estimated that those individuals living below the Census Bureau poverty level account for 12.9% of the U.S. population and 16.5% of the population living within one mile of facilities that filed at least one Form R for reporting year 2003. The figure for facilities that would qualify for Form A under the proposed rule is 17.0%. Based on the information provided to Congress, EPA said that “the results show little variance between the percent of communities with facilities filing Form Rs and the percent of communities where facilities would be able to file Form A under the proposed rule.” As noted in more detail below, EPA does not have any evidence that this rule will have a direct effect on human health or environmental conditions. Based on these results, EPA believes that the rule will not disproportionately affect the environment or public health in minority or low-income communities. EPA recognizes that TRI provides important information that may indirectly lead to improved health and environmental conditions at the community level. Although today's action was not specifically crafted to address minority and disadvantaged communities, the reduced number of facilities eligible for Form A under today's rule, as compared to the proposed rule, means that there will be more detailed information available to communities generally, including minority and disadvantaged communities. 5. Comments on Specific Chemicals Many commenters raised concerns about specific chemicals. In the proposed rule, EPA asked for comment on whether any of the chemicals potentially eligible for the 5,000-pound ARA are of a sufficient level of concern to justify excluding them from eligibility for Form A at the higher threshold. Commenters voiced concerns about the potential non-reporting of TRI release information on the Hazardous Air Pollutants

(HAPs)regulated under the Clean Air Act (CAA). Other commenters asked EPA to exclude carcinogens from Form A eligibility at the proposed 5,000-pound ARA or to consider human developmental effects of the toxic chemical when assessing eligibility. The Agency factored into its decision-making for today's action the impact that the proposed rule could have on HAP chemical release information. Agency analysis estimated that 32 TRI-listed HAP chemicals identified by the Agency as “priority urban air toxics” could account for as many as 2,600 of the approximately 12,000 Form Rs at issue under the proposal. While these 2,600 forms account for almost 20% of all Form Rs submitted for these HAPs, they account for only 0.4% of total releases reported to TRI for these 32 HAP chemicals. Moreover, in today's final rule, the Agency set a 2,000-pound limit on non-PBT chemical releases, which will have a smaller impact on detailed reporting of HAP data than the proposed rule. In addition, although TRI provides valuable data on facility HAP emissions, broader coverage of stationary source HAP emissions, as well as data on mobile sources of HAPs, are available from EPA's publicly available National Emissions Inventory (NEI). After thoughtful consideration, EPA has decided to apply today's expanded Form A eligibility to all TRI-listed non-PBT chemicals. 6. Form A Utilization Rate and the Agency's Enforcement Policy As discussed in the preamble to the proposed rule, the Agency considered the existing Form A utilization rate when deciding how much to expand the eligibility for Form A under this rule. Specifically, the Agency has observed to date that only slightly over half of the forms (54%) that facilities submit to TRI that could use Form A are actually submitted on Form As. The Agency believes there are a number of possible reasons for this estimated utilization rate, including the desire to showcase pollution prevention efforts on Form R and the desire to demonstrate good environmental stewardship. The Agency is not convinced that the rate of Form A utilization is likely to be significantly higher at a 5,000-pound ARA with a 2,000-pound release limit than the rate of utilization to date with the 500-pound ARA threshold. However, many comments say that the lack of a clear EPA enforcement policy for the erroneous submission of Form A by facilities acting in good-faith contributes to an unnecessarily low Form A utilization rate. These commenters believe that Form A will continue to be underutilized unless and until the Agency widely clarifies its enforcement policy among the regulated community. Reporters should note that on March 30, 2005, EPA issued a memorandum restating its enforcement policy for reporters who submit a Form A in lieu of a Form R when the reporters did not qualify for the alternate threshold reporting exemption. At all times since the alternate reporting threshold was created, EPA enforcement policy has been to treat such a violation as a Level 3 violation, which is the same level at which data quality violations are treated. However, when a person subject to reporting fails to file either a Form R or a Form A, that violation will be treated as a Level 1 (failure to report) violation, even if the person could have qualified for the alternate reporting threshold and the report could have been made on a Form A in lieu of a Form R. 7 7 There are six levels of violations with Level 1 imposing the highest penalty and Level 6 the lowest. Thus, the severity of a Level 3 violation is less than that of a Level 1. The March 30, 2005, memorandum and all other EPCRA Section 313 enforcement policy documents can be found at *http://cfpub.epa.gov/compliance/resources/policies/civil/epcra/index.cfm.* 7. Including Section 8.8 in the Non-PBT ARA Commenters generally support modifying the Form A ARA to include Section 8.8 quantities. Section 8.8 of the Form R is intended to capture release and other waste management quantities resulting from remedial actions, catastrophic events, or one-time events not associated with production processes. Several commenters assert that one-time events or accidental releases can result in substantial releases to the environment. One commenter states that although Section 8.8 release amounts are not the direct result of production activities, these releases are still generated as a result of facilities doing business manufacturing, processing, or otherwise using TRI-listed chemicals, and therefore, Section 8.8 quantities should be included in the ARA. Another commenter notes that if catastrophic events are rare, as EPA may be assuming, then shielding them from disclosure would not yield any appreciable reduction in paperwork. One commenter supports modifying the ARA to include Section 8.8 waste management quantities, since including the waste management amounts of Section 8.8 in the ARA for PBT chemicals and not in the ARA for non-PBT chemicals would add unnecessary complexity in determining Form A eligibility. For several reasons, EPA has decided to include Section 8.8 non-production-related quantities in the calculations to determine whether facilities have met the 5,000-pound ARA for non-PBT chemical Form A eligibility. First, EPA agrees with commenters that while Section 8.8 release and other waste management amounts are not the direct result of production-related activities, and therefore, are less amenable to source-reduction efforts, reporting on Section 8.8 quantities provides important information in the same way the reporting on production-related release and other waste management amounts informs stakeholders. Second, EPA agrees that the ARA for non-PBT chemicals should include Section 8.8 waste management amounts in order to create consistency with the PBT eligibility criteria. In other words, including the waste management amounts of Section 8.8 in the Form A threshold determination for PBT chemicals and not in the ARA for non-PBT chemicals would add unnecessary complexity in determining Form A eligibility. Third, EPA does not expect the inclusion of Section 8.8 amounts in the Form A threshold determination for non-PBT chemicals to add a significant amount of burden to those facilities considering Form A. Less than 4% of all non-PBT chemical Form Rs have a value greater than zero in Section 8.8. Accordingly, Section 8.8 quantities will not play any role in most Form A eligibility determinations. Furthermore, because Section 8.8 is restricted to quantities involving remedial actions, catastrophic events, or one-time events not associated with production processes, EPA does not expect Section 8.8 quantities to factor into any facility's Form A eligibility determinations on a regular basis. Accordingly, based on this final rule, facilities are required to include quantities reported in Section 8.8 in their non-PBT chemical ARA threshold determinations for Form A eligibility. VI. What Are the Statutory and Executive Order Reviews Associated With This Action? A. Executive Order 12866, Regulatory Planning and Review Under Executive Order

(EO)12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget

(OMB)for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. In addition, EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in “Economic Analysis of the Toxics Release Inventory Phase 2 Burden Reduction Rule.” A copy of the analysis is available in the docket for this action and the analysis is briefly summarized here. For more information, see the Economic Analysis of Toxics Release Inventory Phase 2 Burden Reduction Rule. 1. Methodology To estimate the cost savings, incremental costs, economic impacts, and benefits of this rule, the Agency estimated both the cost and burden of completing Form R and Form A as well as the number of affected entities. The Agency has used Reporting Year

(RY)2004 for TRI data. The Agency identified the number of potentially affected respondents currently completing Form Rs that may be eligible for burden savings under the new Form A eligibility for PBT chemicals and the expanded Form A eligibility for non-PBT chemicals. For both PBT chemical and non-PBT chemical eligibility, the Agency compared the baseline burden for completing Form R with the burden for completing Form A. The total burden and cost savings associated with this rule are the product of the unit burden and cost savings per form times the number of forms newly eligible for Form A pursuant to this rule. Given that only 54% of currently eligible reports are filed using Form A, this approach may overestimate the actual burden reduction from the rule, but EPA believes that it is appropriate to base its estimates on the burden reduction that the rule makes available to reporters, even if not all of them choose to use it. 2. Cost and Burden Savings Results Table 1 summarizes the potential annual cost and burden savings of the Phase 2 TRI Burden Reduction rule, if all newly eligible reports are filed using Form A. Table 1.—Potential Annual Cost and Burden Savings of the Phase 2 TRI Burden Reduction Rule [Reporting year 2004 TRI data] Option Number of newly eligible Form R's Number of potentially eligible facilities Burden savings per Form R (hours) Total annual burden savings (hours) Cost savings per Form R Total annual cost savings Percent of total cost/burden (percent) New Form A Eligibility for PBT chemicals 2,360 1,796 15.5 36,480 $748 $1,764,969 30 Increase ARA for Non-PBT chemicals to 5,000 pounds but limit disposal and other releases to 2000 pounds 9,501 5,317 9.1 86,924 438 4,160,239 70 Total of Options 11,861 6,670 123,404 500 5,925,208 100 Table 1 does not reflect those non-PBT forms that may lose their current Form A eligibility as a result of including Section 8.8 amounts (e.g., catastrophic events) in the ARA threshold determinations for Form A eligibility. While the exact number of newly ineligible forms cannot be calculated, a reasonable estimate of the number of newly ineligible forms is 95, which equates to 1% of the 9,501 non-PBT forms estimated to be newly eligible for Form A. The estimate of 95 forms is based on the sum of 45 Form Rs and 50 Form As, which are estimated to be ineligible for Form A if Section 8.8 data are included in the Form A eligibility criteria and applied to 2004 reports. Specifically, a review of the approximately 10,000 Form Rs for reporting year 2004 that currently appear to be eligible for Form A at the 500-pound ARA reveals about 45 forms that would be ineligible for Form A as a result of including Section 8.8 amounts in Form A threshold determinations. Because Form R does not record quantities related to the activity threshold, this estimate assumes facilities have not manufactured, processed or otherwise used more than one million pounds. EPA also recognizes that some number of currently filed Form As will become newly ineligible for Form A because of today's requirement to include Section 8.8 amounts in Form A eligibility determinations. Since Form A does not provide specific waste management quantities, EPA cannot estimate with certainty the number of Form As that may become newly ineligible for Form A as a result of today's rule. However, if one assumes the approximately 10,000 Form Rs that appear to be eligible for Form A at the 500-pound ARA are representative of the approximately 11,000 Form As currently filed under the 500-pound ARA, then one could estimate that 50 of the 11,000 Form As would be ineligible for Form A as a result of today's rule ((45/10,000) × 11,000 = 50). For more information on Section 8.8 and Form A eligibility see Chapter 6 of the Economic Analysis. EPA estimates that the total annual burden savings for this proposal is 123,404 hours, excluding the 1% burden increase from newly-ineligible facilities. EPA estimates the total annual cost savings for this proposal is $5.9 million. Average annual cost savings for facilities submitting Form As in lieu of Form Rs is $438 per form for non-PBT reports and $748 per form for PBT reports. 3. Impacts to Data EPA has evaluated the potential impacts to data reported to the public for the rule and determined that the likelihood of significant impacts is minimal. For New Form A Eligibility for PBT chemicals, the TRI chemical report submitted must certify that no production-related or non-production-related releases to the environment occurred. The balance of management of these TRI chemicals is most likely either recycling or management through energy recovery or treatment for destruction at quantities totaling 500 pounds or less based on our knowledge of the chemicals and how they are managed. For Expanded Form A Eligibility for non-PBT chemicals, the Agency has evaluated both total release pounds and total annual reportable amount

(ARA)pounds that may no longer be reported on Form R as a result of this final rule. Relative to the ARA of 500 pounds that includes total production-related waste (sections 8.1 through and including 8.7), approximately 5.7 million additional release pounds (0.14% of all TRI release pounds) and 10.5 million additional annual reportable amount pounds (0.06% of all TRI annual reportable amount pounds) would be eligible for Form A reporting as a result of this final rule. As noted above, based on historical experience, EPA projects that not all eligible reporters will use Form A. For those that do, the Form A for non-PBTs provides a range report of zero to 5,000 pounds for annual reportable amounts, and zero to 2,000 pounds for disposal and other releases, including non-production-related releases. Further information on how specific chemicals are affected can be found in the economic analysis of this rulemaking. B. Paperwork Reduction Act This action is a burden reduction rule and does not impose any new information collection burden. However, the Office of Management and Budget

(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 numbers 2070-0093 and 2070-0143. A copy of the OMB approved Information Collection Requests

(ICRs)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. EPA calculated the potential reporting and recordkeeping burden reduction for this rule to be 123,404 hours and the potential cost savings to be $5.9 million per year. As noted above, actual burden reduction and cost savings will likely be somewhat less. Burden means total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. That 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. C. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. 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 impacts of this rule on small entities, 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, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The economic impact analysis conducted for today's rule indicates that these revisions to Form R and Form A would generally result in savings to affected entities compared to baseline requirements. However, some businesses that currently file one or more Form A's would be required to file Form R's as a result of including Section 8.8 amounts (e.g., catastrophic events) in the ARA threshold determinations for Form A eligibility. While this rule will result in a cost savings for most affected entities, these businesses would suffer a burden increase. Since the burden increase will be attributable to significant non-production-related wastes (i.e., unusual events) the number of facilities experiencing this burden each year will likely remain about the same, although the specific facilities are likely to change. This rule is expected to adversely affect 19 parent companies that own 32 facilities that currently file Form A submissions. Of the affected parent companies, approximately 45 percent, or 9 companies, are small businesses as defined by the Small Business Administration. No small governments or small organizations are expected to be affected by this action. Each affected small business is expected to expend approximately 14 hours per year to comply with the additional reporting requirements. Based on the incremental cost estimates for these burden hours, the number of facilities owned by each small business, and the annual revenues of the affected small businesses, all 9 affected small businesses are expected to experience incremental cost impacts of less than one percent of annual revenues. See Chapter 7 (Small Entity Impact Analysis) of the Economic Analysis. D. Unfunded Mandates Reform Act EPA has determined that this 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 one year. This rule is estimated to save compliance costs of $5.9 million annually to the private sector. In addition, this rule does not create any additional federally enforceable duty for State, local and tribal governments. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13132, Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. F. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 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.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. G. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Today's rule reduces recordkeeping and reporting burden for TRI reporters. It will not cause reductions in supply or production of oil, fuel, coal, or electricity. Nor will it result in increased energy prices, increased cost of energy distribution, or an increased dependence on foreign supplies of energy. H. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that EPA determines

(1)“economically significant” as defined under Executive Order 12866, and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potential effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to E.O. 13045 because it is not an economically significant rule as defined by E.O. 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not establish technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Environmental Justice Under Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” EPA has undertaken to incorporate environmental justice into its policies and programs. EPA is committed to addressing environmental justice concerns, and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that:

(1)No segment of the population, regardless of race, color, national origin, or income, bears disproportionately high and adverse human health and environmental effects as a result of EPA's policies, programs, and activities; and

(2)all people are treated fairly and are given the opportunity to participate meaningfully in the development, implementation, and enforcement of environmental laws, regulations, and policies. The TRI Program is an environmental information program. While it provides important information that may indirectly lead to improved health and environmental conditions on the community level, it is not an emissions release control regulation that could directly affect health and environmental outcomes in a community. The principal consequence of today's action will be to reduce the amount of detailed information available on some toxic chemical releases or management. However, as pointed out in the previous discussion, the impacts will be very small in terms of total national figures. EPA believes that the data provided under this rule will continue to provide valuable information that fulfills the purposes of the TRI program. By structuring Form A eligibility for both PBT chemicals and non-PBT chemicals in a way that favors recycling and treatment over disposal and other releases, today's rule encourages facilities to reduce their releases and ensures that valuable information will continue to be provided to the public pursuant to the purposes of section 313 of EPCRA and section 6607 of PPA. Furthermore, only the non-PBT chemical portion of today's rule will have any effect on the reporting of chemicals released to the environment. The PBT chemical portion of this rule requires that facilities reporting PBTs have no releases in order to be eligible for Form A. EPA does not have any evidence that this rule will have a direct effect on human health or environmental conditions. The Agency has given careful consideration to the level of detail in the information available to minority and low-income communities. While there is a higher proportion of minority and low-income communities in close proximity to some TRI facilities than in the population generally, the rule does not appear to have a disproportionate impact on these communities, since facilities in these communities are no more likely than elsewhere to become eligible to use Form A as a result of the rule. Results of the environmental justice assessment on the final rule are available in the information docket. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective January 22, 2007. List of Subjects in 40 CFR Part 372 Environmental protection, Community right-to-know, Reporting and recordkeeping requirements, Toxic chemicals. Dated: December 18, 2006. Stephen L. Johnson, Administrator. Therefore, 40 CFR part 372 is amended as follows: PART 372—[AMENDED] 1. The authority citation for part 372 continues to read as follows: Authority: 42 U.S.C. 11023 and 11048. Subpart A—[Amended] 2. Revise § 372.10(d) introductory text to read as follows: § 372.10 Recordkeeping.

(d)Each owner or operator who determines that the owner operator may apply one of the alternate thresholds as specified under § 372.27(a) must retain the following records for a period of 3 years from the date of the submission of the certification statement as required under § 372.27(b): Subpart B—[Amended] 3. Section 372.27 is amended as follows: i. Revise section heading. ii. Revise paragraph (a). iii. Revise paragraph (b). iv. Revise paragraph (e). § 372.27 Alternate thresholds and certifications.

(a)Except as provided in paragraph

(e)of this section:

(1)*General.* With respect to the manufacture, process, or otherwise use of a toxic chemical, the owner or operator of a facility may apply an alternate threshold of 1 million pounds per year to that chemical if the owner or operator calculates that the facility would have:

(i)No more than 2,000 pounds of total on-site and off-site disposal or other releases (including disposal or other releases that resulted from catastrophic events); and

(ii)An annual reportable amount of that toxic chemical not exceeding 5,000 pounds for the combined total quantities released at the facility; disposed within the facility; treated for destruction at the facility; recovered at the facility as a result of recycling operations; combusted for the purpose of energy recovery at the facility; transferred from the facility to off-site locations for the purpose of recycling, energy recovery, treatment, and/or disposal; and managed as a result of remedial actions, catastrophic events, or one-time events not associated with production processes during the reporting year. These volumes correspond to the sum of amounts reportable for data elements on EPA Form R (EPA Form 9350-1; Rev. 01/2006) as Part II column B or sections 8.1 (total quantity released), 8.2 (quantity used for energy recovery on-site), 8.3 (quantity used for energy recovery off-site), 8.4 (quantity recycled on-site), 8.5 (quantity recycled off-site), 8.6 (quantity treated on-site), 8.7 (quantity treated off-site), and 8.8 (quantity released to the environment as a result of remedial actions, catastrophic events, or one-time events not associated with production processes).

(2)*Chemicals of Special Concern.* With respect to the manufacture, process, or otherwise use of a toxic chemical, the owner or operator of a facility may apply an alternate threshold of 1 million pounds per year to that chemical if the owner or operator calculates that the facility would have:

(i)Zero on-site and off-site disposal or other releases (including disposal or other releases that resulted from catastrophic events); and

(ii)An “Annual Reportable Amount of a Chemical of Special Concern” not exceeding 500 pounds. The “Annual Reportable Amount of a Chemical of Special Concern” is the combined total of:

(A)Quantities treated for destruction at the facility;

(B)Quantities recovered at the facility as a result of recycling operations;

(C)Quantities combusted for the purpose of energy recovery at the facility;

(D)Quantities transferred from the facility to off-site locations for the purpose of recycling, energy recovery, and/or treatment; and

(E)Quantities managed through recycling, energy recovery, or treatment for destruction that were the result of remedial actions, catastrophic events, or one-time events not associated with production processes during the reporting year.

(b)If an owner or operator of a facility determines that the owner or operator may apply one of the alternate reporting thresholds specified in paragraph

(a)of this section for a specific toxic chemical, the owner or operator is not required to submit a report for that chemical under § 372.30, but must submit a certification statement that contains the information required in § 372.95. The owner or operator of the facility must also keep records as specified in § 372.10(d).

(e)The alternative thresholds described in paragraph

(a)of this section are limited by the following:

(1)The provisions of paragraph (a)(1) of this section do not apply to any chemicals listed in § 372.28.

(2)The provisions of paragraph (a)(2) of this section apply only to chemicals listed in § 372.28.

(3)Dioxins and dioxin-like compounds are not eligible for the alternate thresholds described in paragraph

(a)of this section. Subpart E—[Amended] 4. Section 372.95 is amended as follows: i. Revise section heading. ii. Revise paragraph

(b)introductory text. iii. Revise paragraph (b)(4). § 372.95 Alternate threshold certifications and instructions.

(b)Alternate threshold certification statement elements. The following information must be reported on an alternate threshold certification statement pursuant to § 372.27(b):

(4)Signature of a senior management official certifying one of the following:

(i)Pursuant to 40 CFR 372.27(a)(1), “I hereby certify that to the best of my knowledge and belief for the toxic chemical(s) listed in this statement, for this reporting year, the annual reportable amount for each chemical, as defined in 40 CFR 372.27(a)(1), did not exceed 5,000 pounds, which included no more than 2,000 pounds of total disposal or other releases to the environment, and that the chemical was manufactured, or processed, or otherwise used in an amount not exceeding 1 million pounds during this reporting year;” and/or

(ii)Pursuant to 40 CFR 372.27(a)(2), “I hereby certify that to the best of my knowledge and belief for the toxic chemical(s) of special concern listed in this statement, there were zero disposals or other releases to the environment (including disposals or other releases that resulted from catastrophic events) for this reporting year, the “Annual Reportable Amount of a Chemical of Special Concern” for each such chemical, as defined in 40 CFR 372.27(a)(2), did not exceed 500 pounds for this reporting year, and that the chemical was manufactured, or processed, or otherwise used in an amount not exceeding 1 million pounds during this reporting year.” [FR Doc. E6-21958 Filed 12-21-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 061213334-6334-01; I.D. 120806B] RIN 0648-AV05 Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Interim Rule AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; interim rule and request for comments. SUMMARY: NMFS implements this interim rule to reduce overfishing that may occur in 2007. This rule delays the opening of the Elephant Trunk Access Area

(ETAA)until March 1, 2007, reduces the maximum number of trips per vessel in the ETAA per limited access vessel, reduces the number of general category fleet trips from 1,360 to 865 trips in the ETAA, and prohibits the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the boundaries of the ETAA. This interim action is necessary because a recent projection by the New England Fishery Management Council's (Council) Plan Development Team

(PDT)indicated that overfishing of the scallop resource may occur in the 2007 fishing year (FY). The new information presents previously unforeseen circumstances that also present serious management problems to the fishery. Overharvest of the ETAA in FY 2007, and resulting overfishing that may result, could undermine the goals and objectives of area rotation that is the cornerstone of the Atlantic Sea Scallop Scallop Fishery Management Plan (FMP). The ETAA has an unprecedented high abundance of scallops, which needs to be husbanded with caution to effectively preserve the long-term health of the scallop resource and fishery. DATES: Effective from December 22, 2006 through June 20, 2007. Comments must be received at the appropriate address or fax number (see ADDRESSES ) by 5 p.m., local time, on January 22, 2007. ADDRESSES: Written comments should be submitted by any of the following methods: • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on Scallop Interim Action.” • Email: *ScallopInterim@noaa.gov* • Fax:

(978)281-9135 • Electronically through the Federal e-Rulemaking portal: *http//www.regulations.gov* . FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery Policy Analyst, 978-281-9288; fax 978-281-9135. SUPPLEMENTARY INFORMATION: On June 15, 2006, the NMFS implemented Framework 18 to the FMP (Framework 18) (71 FR 33211). Framework 18 included management measures for the scallop fishery for the 2006 and 2007 fishing years

(FY)to prevent overfishing and to achieve optimum yield from the scallop resource. Framework 18 scheduled the opening of the ETAA to scallop fishing for January 1, 2007, with a maximum of five trips per limited access scallop vessel in the ETAA for the 2007 FY. The general category fleet was allocated 1,360 trips in the ETAA for the 2007 FY. The management measures in Framework 18 were based on biomass and fishing mortality estimates calculated using 2004 scallop survey information, which resulted in uncertainty for the projections, particularly for the 2007 FY. Due to the uncertainty, Framework 18 included a regulatory mechanism that allowed NMFS to reduce the number of trips in the ETAA if updated biomass estimates indicate that the ETAA biomass is significantly lower than the Framework 18 biomass estimate for the ETAA. In October 2006, the Council's PDT reviewed 2006 survey information from three separate biomass surveys and determined that the biomass was lower than projected in Framework 18. Based on biomass estimates alone, no adjustment was necessary, because the biomass is still projected to be above the level that would result in trip reductions under the Framework 18 regulatory mechanism. However, the PDT urged precaution in managing the scallop fishery in 2007 because preliminary fishery projections for the 2007 FY indicated that overfishing of the scallop resource could occur in 2007 under the scheduled management measures. After incorporating 2005 and 2006 scallop survey information into updated projections in November 2006, the PDT found that, in addition to overestimating the biomass in the ETAA, Framework 18 underestimated fishing mortality and overestimated stockwide biomass in 2007. The 2006 updated projection predicted that the level of overfishing was only slightly higher than the threshold fishing mortality rate that would result in an overfishing determination, but the PDT was concerned that various assumptions in the projections combined with unquantifiable factors (reduced meat-weights due to the seasonal spawning cycle and higher-than-estimated discard and natural mortality) led to overly optimistic projections and a likely underestimate of fishing mortality on scallops in 2007. As a result, in a memorandum to the Council dated November 7, 2006, the PDT advised that reducing the number of trips in the ETAA would reduce the potential for overfishing the scallop resource in 2007. In addition, the PDT noted in the memorandum that delaying the opening to March 1, 2007, would increase yield (and reduce fishing mortality), and that prohibiting “deckloading” before leaving a Sea Scallop Access Area (Access Area) (i.e., leaving a high volume of scallops on deck to be shucked while the vessel steams to port), could prevent a source of additional scallop mortality. On November 15, 2006, following a discussion of the PDT's memorandum and recommendations, the Council voted to request that NMFS implement an interim action to reduce overfishing in 2007. The Council recommended a reduction in the number of ETAA trips from 5 to 3 per full-time limited access vessel (with appropriate reductions for other permit categories), a delay of the ETAA opening date to March 1, 2007, and a prohibition on deckloading in access areas. Representatives of the scallop industry expressed strong support for the Council's recommendations throughout PDT and Council discussion on the issue. Based on the information supporting the Council's recommendation, NMFS is implementing this action as an interim rule, pursuant to its interim action authority specified in the Magnuson-Stevens Fishery Conservation and Management Act at 16 U.S.C. 1855(c) to reduce overfishing of the scallop resource in 2007. The recent projection of overfishing in the 2007 FY presents previously unforeseen circumstances that present serious management problems to the fishery. If this rule is implemented after January 1, 2007, vessels could begin taking up to five trips (for full-time vessels) into the ETAA. This would likely result in overharvesting scallops in the ETAA and overfishing of scallops in the 2007 FY. Overharvest of the ETAA in 2007, and resulting overfishing that may result, could undermine the goals and objectives of area rotation that is the cornerstone of the FMP. The ETAA has an unprecedented high abundance of scallops, which needs to be husbanded with caution to effectively preserve the long-term health of the scallop resource and fishery. These circumstances, therefore, are consistent with Policy Guidelines for the Use of Emergency Rules (August 21, 1997, 62 FR 44422) without the opportunity for prior notice and public comment. Interim Measures 1. ETAA Trip Reduction This interim rule reduces the number of trips from five trips to three trips for full-time scallop vessels in the ETAA (scallop possession limit would remain at 18,000 lb (8,165 kg)); reduces the number of trips from three trips to two trips (for all access areas) for part-time scallop vessels in the ETAA (scallop possession limit for part-time vessels would be increased from 16,800 lb (7,620 kg) per trip to 18,000 lb per trip (8,165 kg)); and reduces the occasional vessel possession limit from 10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip. The regulations at § 648.60(a)(5) published for Framework 18 specified that an occasional vessel's possession limit is 7,500 lb (3,402 kg) per trip. However, Framework 18 intended and analyzed a possession limit of 10,500 lb (4,763 kg) per trip for the 2007 FY. This interim rule also reduces the general category scallop fleet trip allocation from 1,360 to 865 trips in the ETAA. Reducing the number of trips for scallop vessels in the ETAA. addresses the concern that overfishing of the scallop resource may occur in 2007. Although the biomass in the ETAA remains very high relative to the rest of the scallop resource, it is less abundant than was projected in Framework 18. As a result, even though the fishing mortality is expected to be lower than the target fishing mortality in the area, it would be high enough at the lower biomass to contribute to overfishing in 2007. Part-time vessels have a trip reduction with an increase in the possession limit to ensure that the total access area catch for part-time vessels remains at 40 percent of the full-time access area catch, as intended by the FMP. Occasional vessels have one trip to any access area, but have a possession limit of 7,500 lb (3,402 kg) for the trip, ensuring that the total access area catch for occasional vessels remains at 8.3 percent of the full-time access area catch. Reducing trips in the ETAA was contemplated in Framework 18 and the potential impacts of the trip reductions were fully analyzed in Framework 18. 2. Delayed opening of the ETAA This interim rule delays the opening of the ETAA until March 1, 2007. A delay in the opening of the ETAA until March 1, 2007, prevents vessels from harvesting scallops in the ETAA before they gain meat-weight during January through February. Following spawning in the fall months, scallops undergo a period of recovery when the meats increase in size and weight. Harvesting scallops at a higher meat-weight improves scallop yield, resulting in lower mortality, since fewer scallops need to be caught to meet the poundage possession limits. In addition, with three trips per vessel, one of the original reasons for opening the ETAA on January 1, 2007, (i.e., to spread the five allocated trips over a longer period) is no longer supported. The March 1, 2007, opening was also contemplated in Framework 18. The new information provided by the Council demonstrates that the delay is necessary, along with the trip reductions, to reduce overfishing in 2007. 3. Prohibition on Deckloading This interim rule prohibits the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the boundaries of the ETAA for vessels on Access Area trips. Deckloading is the practice of loading the deck of a vessel with the scallop catch from several tows. Under the current Access Area regulations, vessels can deckload and leave the area, and the vessel crews can spend the time steaming home, sorting and shucking scallops, thereby reducing overall trip costs. This can result in a vessel having more scallops on board than are necessary to achieve the possession limit. The excess scallops are discarded. In addition, due to deckloading, scallops remain on deck longer, increasing discard mortality. In the ETAA, deckloading may cause even higher scallop mortality, since catch rates are expected to be very high, there is a mix of scallop sizes in the area, and scallop crews may discard more smaller scallops in favor of larger scallops. Although the amount of additional mortality cannot be estimated, prohibiting deckloading on ETAA trips is a complementary measure that will help prevent additional scallop mortality. Although the Council and scallop industry recommend that the prohibition on deckloading be applied to all Access Areas, NMFS has determined that the prohibition can only be supported for the ETAA under this interim action. While the prohibition would help reduce overfishing in the 2007 FY as it relates to the ETAA, deckloading in other access areas cannot be tied directly at this time to overfishing of the scallop resource. It cannot, therefore, be sufficiently justified as an interim measure necessary to reduce overfishing. NMFS notes that the deckloading prohibition in this interim rule also includes broken trips. The broken trip provision allows a vessel operator complete discretion to terminate an access area trip if circumstances warrant. Under this interim rule, a vessel that breaks a trip will also be prohibited from possessing more than 50 bu (17.62 hL) of in-shell scallops outside of the ETAA. On broken trips, in-shell scallops could be discarded in the ETAA and the vessel would be allowed to return to the area to complete the trip, provided the owner complies with the broken trip request procedures. 4. Access Area Trip Exchange Clarification This interim rule also specifies how ETAA trip allocations are impacted for vessel owners who were involved in one-for-one trip exchanges of FY 2007 ETAA trips and FY 2006 Closed Area II and/or Nantucket Lightship Access Area trips. In the 2006 FY, vessel owners were able to exchange with another vessel up to five ETAA trips from the 2007 FY, for up to five Closed Area II and Nantucket Lightship Access Area trips from the 2006 FY. Prior to this interim rule, the total number of FY 2007 ETAA trips that could be taken by both vessels involved in the exchange was 10 trips in the ETAA. Since the total number of FY 2007 ETAA trips between two vessels cannot exceed six trips in the ETAA under this interim rule, the regulation specifying the trip exchange is clarified. Classification Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, finds it is impracticable and contrary to the public interest to provide for prior notice and an opportunity for public comment prior to publishing this interim rule, for the following reasons. Interim action through a final rule without the opportunity for public comment will prevent the adverse impacts that could be expected if NMFS proceeds under normal rulemaking. Under Framework 18 regulations, the ETAA will open on January 1, 2007, and implementing the interim rule without opportunity for prior notice and an opportunity for public comment is necessary to prevent the area from opening on January 1, 2007. The ETAA has an unprecedented high abundance of scallops, which needs to be husbanded with caution to effectively preserve the long-term health of the scallop resource and fishery. If this interim rule is implemented after January 1, 2007, vessels would be able to begin fishing in the ETAA on January 1, 2007. The scallop industry has warned that a very high amount of effort will take place upon opening of the area and that the catch rate of scallops in the area is expected to be very high. The scallop fleet could therefore complete a large number of trips in a short period of time. The updated projection provided by the PDT indicates that opening the ETAA in January to five trips (for full-time scallop vessels) would likely result in overharvesting scallops in the ETAA and overfishing of scallops in the 2007 FY. Overharvest of the ETAA in 2007, and resulting overfishing that is projected to result, will undermine the goals and objectives of area rotation that is the cornerstone of the FMP. Therefore, delaying the opening of the ETAA and reducing the number of trips is necessary to prevent overfishing, based on the projection and recommendations of the PDT. The need for this interim action did not become apparent until the updated fishery and resource status projections were completed and reported in the November 7, 2006, memorandum to the Council. The recent projection of overfishing in the 2007 FY presents previously unforeseen circumstances that present serious management problems to the fishery. Because the information dictating the need for this action only became available and known on November 7, 2006, there is insufficient time to provide opportunity for prior public comment and a waiver of prior public comment is justifiable under U.S.C. 553(b)(B). For the same reasons, good cause also exists under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delayed effective date, and implement this interim action upon publication. This interim rule has been determined to be not significant for purposes of Executive Order 12866. This interim rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: December 19, 2006. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 648.14, paragraph (i)(1) is suspended, and paragraphs (h)(27), (i)(13), and (i)(14) are added to read as follows: § 648.14 Prohibitions.

(h)* * *

(27)Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60.

(i)* * *

(13)Fish for or land per trip, or possess at any time, in excess of 400 lb (181.4 kg) of shucked, or 50 bu (17.62 hL) of in-shell scallops, unless the vessel is participating in the Area Access Program specified in § 648.60, is carrying an observer as specified in § 648.11, and an increase in the possession limit is authorized as specified in § 648.60(d)(2).

(14)Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60. 3. In § 648.52, paragraph

(e)is added to read as follows: § 648.52 Possession and landing limits.

(e)Owners or operators of a vessel that is declared into the Elephant Trunk Access Area Sea Scallop Area Access Program as described in § 648.60, are prohibited from possessing more than 50 bu (17.62 hL) of in-shell scallops outside of the Elephant Trunk Access Area described in § 648.59(e). 4. In § 648.58, paragraphs

(a)through

(d)are suspended and paragraphs

(e)through

(h)are added to read as follows: § 648.58 Rotational Closed Areas.

(e)Through February 28, 2007, no vessel may fish for scallops in, or possess or land scallops from, the area known as the Elephant Trunk Closed Area. No vessel may possess scallops in the Elephant Trunk Closed Area, unless such vessel is only transiting the area as provided in paragraph

(g)of this section. The Elephant Trunk Closed Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request): Point Latitude Longitude ET1 38°50′ N. 74°20′ W. ET2 38°10′ N. 74°20′ W. ET3 38°10′ N. 73°30′ W. ET4 38°50′ N. 73°30′ W. ET1 38°50′ N. 74°20′ W.

(f)*Delmarva Closed Area* . From January 1, 2007, no vessel may fish for scallops in, or possess or land scallops from, the area known as the Delmarva Closed Area. No vessel may possess scallops in the Delmarva Closed Area, unless such vessel is only transiting the area as provided in paragraph

(b)of this section. The Delmarva Closed Area is defined by straight lines connecting the following points in the order stated (copies of a chart depicting this area are available from the Regional Administrator upon request): Point Latitude Longitude DMV1 38°10′ N. 74°50′ W. DMV2 38°10′ N. 74°00′ W. DMV3 37°15′ N. 74°00′ W. DMV4 37°15′ N. 74°50′ W. DMV1 38°10′ N. 74°50′ W.

(g)*Transiting* . No vessel possessing scallops may enter or be in the area(s) specified in paragraphs

(e)and

(f)of this section unless the vessel is transiting the area and the vessel's fishing gear is unavailable for immediate use as defined in § 648.23(b), or there is a compelling safety reason to be in such areas.

(h)*Vessels fishing for species other than scallops* . A vessel may fish for species other than scallops within the closed areas specified in paragraphs

(e)and

(f)of this section as allowed in this part, provided the vessel does not fish for, catch, or retain scallops or intend to fish for, catch, or retain scallops. Declaration through VMS that the vessel is fishing in the general category scallop fishery is deemed to be an intent to fish for, catch, or retain scallops. 5. In § 648.59, paragraphs (e)(1) and (e)(4) are suspended and paragraphs (e)(5) and (e)(6) are added to read as follows: § 648.59 Sea Scallop Access Areas.

(e)* * *

(5)From March 1, 2007, and subject to the seasonal restrictions specified in paragraph (e)(3) of this section, a vessel issued a scallop permit may fish for, possess, or land scallops in or from the area known as the Elephant Trunk Sea Scallop Access Area, described in paragraph (e)(2) of this section, only if the vessel is participating in, and complies with the requirements of, the area access program described in § 648.60.

(6)*Number of trips* -(i) *Limited access vessels* . Based on its permit category, a vessel issued a limited access scallop permit may fish no more than the maximum number of trips in the Elephant Trunk Sea Scallop Access Area from March 1, 2007, as specified in § 648.60(a)(3)(i), unless the vessel owner has made an exchange with another vessel owner whereby the vessel gains an Elephant Trunk Sea Scallop Access Area trip and gives up a trip into another Sea Scallop Access Area, as specified in § 648.60(a)(3)(ii), or unless the vessel is taking a compensation trip for a prior Elephant Trunk Access Area trip that was terminated early, as specified in § 648.60(c).

(ii)*General category vessels* . Subject to the possession limits specified in §§ 648.52(a) and

(b)and 648.60(g), a vessel issued a general category scallop permit may not enter in, or fish for, possess, or land sea scallops in or from the Elephant Trunk Sea Scallop Access Area once the Regional Administrator has provided notification in the **Federal Register** , in accordance with § 648.60(g)(4), that 865 trips allocated for the period March 1, 2007, have been taken, in total, by all general category scallop vessels, unless transiting pursuant to paragraph

(f)of this section. The Regional Administrator shall notify all general category scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be, taken from March 1, 2007. 6. In § 648.60, paragraphs (a)(3)(i), (a)(3)(ii)(B), (a)(5)(i), (d)(1)(v), (e)(1)(v), and (g)(3)(iv) are suspended and paragraphs (a)(3)(ii)(C), (a)(3)(iii), (a)(5)(iv), (d)(1)(vi), (e)(1)(vi), and (g)(3)(vi) are added to read as follows: § 648.60 Sea scallop area access program requirements.

(a)* * *

(3)* * *

(ii)* * *

(C)Limited access scallop vessels involved in an exchange of Closed Area II and/or Nantucket Lightship Closed Area Access Area trips for the 2006 fishing year, and Elephant Trunk Access Area trips for the 2007 fishing year shall be subject to a reduction of the vessels' allocated trips so that the total number of allocated Elephant Trunk Access Area trips between two vessels that were involved in such an exchange shall be six for full-time vessels and four for part-time vessels in the 2007 fishing year. Reductions will be applied equally to both vessels' resulting Elephant Trunk Access Area allocation for the 2007 fishing year after the exchange is taken into account, unless the vessel giving Elephant Trunk Access Area trips to another vessel has one or zero Elephant Trunk Access Area trips remaining after the exchange. In such a case, the vessel that received the Elephant Trunk Access Area trips will be subject to a reduction of up to four Elephant Trunk Access Area trips.

(iii)*Limited Access Vessel trips* .

(A)Except as provided in paragraph

(c)of this section, paragraphs (a)(3)(i)(B) through

(E)specify the total number of trips that a limited access scallop vessel may take into Sea Scallop Access Areas during applicable seasons specified in § 648.59. The number of trips per vessel in any one Sea Scallop Access Area may not exceed the maximum number of trips allocated for such Sea Scallop Access Area as specified in § 648.59, unless the vessel owner has exchanged a trip with another vessel owner for an additional Sea Scallop Access Area trip, as specified in paragraph (a)(3)(ii) of this section, has been allocated a compensation trip pursuant to paragraph

(c)of this section.

(B)*Full-time scallop vessels* . In the 2007 fishing year, a full-time scallop vessel may take one trip in the Closed Area I Access Area, one trip in the Nantucket Lightship Access Area, and three trips in the Elephant Trunk Access Area.

(C)*Part-time scallop vessels* . In the 2007 fishing year, a part-time scallop vessel may take one trip in the Closed Area I Access Area and one trip in the Nantucket Lightship Access Area; or one trip in the Closed Area I Access Area and one trip in the Elephant Trunk Access Area; or one trip in the Nantucket Lightship Access Area and one trip in the Elephant Trunk Access Area; or two trips in the Elephant Trunk Access Area.

(D)*Occasional scallop vessels* . An occasional scallop vessel may take one trip in the 2007 fishing year into any of the Access Areas described in § 648.59 that is open during the specified fishing years.

(5)* * *

(iv)*Scallop possession limits* . Unless authorized by the Regional Administrator, as specified in paragraphs

(c)and

(d)of this section, after declaring a trip into a Sea Scallop Access Area, a vessel owner or operator of a limited access scallop vessel may fish for, possess, and land, per trip, scallops, up to the maximum amounts specified in paragraphs (a)(5)(i)(A) and

(B)of this section. No vessel declared into the Elephant Trunk Access Area as described in § 648.59(e) may possess more than 50 bu (17.62 hL) of in-shell scallops outside of the Elephant Trunk Access Area described in § 648.59(e).

(A)Up to 18,000 lb (8,165 kg) shucked scallops for full-time and part-time scallop vessels.

(B)Up to 7,500 lb (3,402 kg) shucked scallop for occasional scallop vessels.

(d)* * *

(1)* * *

(vi)*Elephant Trunk Access Area* . From March 1, 2007, the observer set-aside for the Elephant Trunk Access Area is 173,100 lb (78.5 mt).

(e)* * *

(1)* * *

(vi)*Elephant Trunk Access Area* . From March 1, 2007, the research set-aside for the Elephant Trunk Access Area is 346,200 lb (157 mt).

(g)* * *

(3)* * *

(vi)*Elephant Trunk Access Area* . 346,000 lb (157 mt) in 2007. [FR Doc. 06-9831 Filed 12-19-06; 3:54 pm]

Connectionstraces to 23