Rules and Regulations. Final rule

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BILLING CODE 6051-01-M ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2007-0015; FRL-8312-5] Approval and Promulgation of Implementation Plans; State of Iowa AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a State Implementation Plan

(SIP)submission by the state of Iowa which revises the air quality rules to include portions of the Federal New Source Review

(NSR)regulations promulgated by EPA in December 2002. These revisions do not include the portion of the rules for nonattainment areas as there are currently no nonattainment areas in the state of Iowa. The definitions and applicability portions of the Prevention of Significant Deterioration

(PSD)program were written into the state rules while the remaining portions of the PSD program were adopted by reference. All references to clean units and pollution control projects are not adopted by reference. Iowa has also not adopted portions of the Federal rule relating to exceptions from recordkeeping requirements. DATES: This rule is effective on June 13, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2007-0015. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30 excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. FOR FURTHER INFORMATION CONTACT: Heather Hamilton at

(913)551-7039, or by e-mail at *hamilton.heather@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions: What is a SIP? What is the Federal approval process for a SIP? What does Federal approval of a State regulation mean to me? What is the background for this action? What is being addressed in this document? Have the requirements for approval of a SIP revision been met? What action is EPA taking? What is a SIP? Section 110 of the Clean Air Act

(CAA)requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each state must submit these regulations and control strategies to us for approval and incorporation into the federally-enforceable SIP. Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations. What is the Federal approval process for a SIP? In order for State regulations to be incorporated into the Federally-enforceable SIP, States must formally adopt the regulations and control strategies consistent with State and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body. Once a State rule, regulation, or control strategy is adopted, the State submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the final Federal action on the State submission. If adverse comments are received, they must be addressed prior to any final Federal action by us. All State regulations and supporting information approved by EPA under section 110 of the Clean Air Act (CAA or Act) are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations

(CFR)at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date. What does Federal approval of a State regulation mean to me? Enforcement of the State regulation before and after it is incorporated into the Federally-approved SIP is primarily a State responsibility. However, after the regulation is Federally-approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA. What is the background of this action? The 2002 NSR Reform rules are part of EPA's implementation of parts C and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I of the CAA, 42 U.S.C. 7470-7492, is the Prevention of Significant Deterioration

(PSD)program, which applies in areas that meet the National Ambient Air Quality Standards (NAAQS), also known as “attainment areas” and in areas for which there is insufficient information to determine whether the area meets the NAAQS, also known as “unclassifiable” areas. Part D of Title I of the CAA, 42 U.S.C. 7501-7515, is the nonattainment New Source Review

(NNSR)program, which applies in areas that are not in attainment of the NAAQS, also known as “nonattainment areas.” Collectively, the PSD and NNSR programs are referred to as the “New Source Review” or NSR programs. EPA regulations implementing these programs are contained in 40 CFR 51.165, 51.166, 52.21 52.24 and part 51, appendix S. The SIP submittal from the State of Iowa does not include the portion of the rules relating to NSR reform provisions for nonattainment areas as the State of Iowa currently has no areas designated nonattainment. The 2002 NSR Reform rules made changes to five areas of the NSR programs. In summary, the 2002 rules:

(1)Provide a new method for determining baseline actual emissions;

(2)adopt an actual-to-projected-actual methodology for determining whether a major modification has occurred;

(3)allow major stationary sources to comply with plantwide applicability limits

(PALs)to avoid having a significant emission increase that triggers the requirements of the major NSR program;

(4)provide a new applicability provision for emissions units that are designated clean units; and

(5)exclude pollution control projects (PCPs). After the 2002 NSR Reform rules were finalized and effective, various petitioners challenged numerous aspects of the 2002 NSR Reform rules, along with portions of EPA's 1980 NSR rules (45 FR 5276, August 7, 1980). On June 24, 2005, the District of Columbia Court of Appeals issued a decision on the challenges to the 2002 NSR Reform Rules. *New York* v. * United States,* 413 F.3d (DC Cir. 2005). In summary, the Court of Appeals for the District of Columbia vacated portions of the rules pertaining to clean units and pollution control projects, remanded a portion of the rules regarding exemption from recordkeeping, *e.g.* , 40 CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and let stand the other provisions included as part of the 2002 NSR Reform rules. EPA has not yet responded to the Court's remand regarding recordkeeping provisions. What is being addressed in this document? The final action described in this section is identical to the action we proposed in the **Federal Register** February 26, 2007, notice of proposed rulemaking (72 FR 8329). We received no comments on any aspect of the proposal, and we are taking final action based on the rationale in the proposal and in this final rule. EPA is revising the Iowa SIP to include the PSD portion of the NSR regulations. In general, the Iowa revisions consist of incorporation by reference of substantial portions of the Federal Prevention of Significant Deterioration

(PSD)rule and inclusion of other portions of the Federal rule almost verbatim. Iowa has not adopted provisions of the 2002 reform rule which were either vacated or remanded by the Court, as previously described. The Iowa Department of Natural Resources

(IDNR)has identified portions of its rule which are at variance with the Federal rule and has provided conclusions with respect to equivalency of the State rule with the Federal requirements. Revisions to the Iowa Administrative Code (567-20.1 and 567-22.4) add language to reference the new Chapter 33 entitled “Special Regulations and Construction Permit Requirements for Major Stationary Sources—Prevention of Significant Deterioration

(PSD)of Air Quality.” These revisions are informational in nature and do not include substantive requirements. Chapter 33 of the Iowa rules contains the substantive PSD rule revisions which include EPA's NSR reform rules as previously described. The Federal provisions are adopted as follows:

(1)The definitions, applicability provisions, public participation procedures, and source obligation provisions (the requirements in section 52.21(r) of the Federal rule with the exception of the provision in section 52.21(r)(6) which exempts certain emissions changes from the recordkeeping requirements) are set forth in language which tracks the relevant language of the corresponding Federal rules; and,

(2)the remainder of the Federal PSD rules upheld by the Court are adopted by reference. The State's definition section (567-33.3(1)) contains several definitions with wording which differs from the wording in the Federal rule, but the differences are either not substantive or do not affect the stringency of the rule. These differences are described in the technical support document, and EPA believes that the differences do not affect the approvability of the rule. Another example of a difference is that the State does not incorporate by reference the Federal definitions relating to the clean unit exemption and pollution control project exclusion, which provisions were vacated by the court. The applicability section (567-33.3(2)) discusses the application of PSD program requirements as they apply to the construction of any new major stationary source, or any project at an existing major stationary source in an area designated as attainment or unclassifiable. This section extracts the language from 40 CFR 51.166(a)(7), including the actual-to-projected-actual test for determining whether a modification is subject to the rule and other provisions of the Federal rule. The public participation procedures in the State rule (567-33.3(17)) are substantially the same as the rules in the existing SIP. EPA believes that these procedures meet the corresponding requirements in 40 CFR 51.166. The following sections were adopted by reference as specified in 40 CFR 52.21: Ambient air increments; Ambient air ceilings; Restrictions on area classifications; Redesignation; Stack heights; Exemptions; Control technology review; Source impact analysis; Air quality models; Air quality analysis; Source information, and Additional impact analyses. The provisions of the State rule relating to exclusions from increment consumption, sources impacting Federal Class I areas—additional requirements, and innovative control technology adopt by reference the relevant portions of 40 CFR 51.166 except for the phrases that contain “the plan may provide that,” “the plan provides that,” “it shall also provide that,” and “mechanism whereby.” These phrases are excluded to convert the language of section 51.166 to substantive rules rather than minimum program requirements. The EPA provisions for plantwide applicability limitations are adopted by reference except that the term “Administrator” used in the Federal rule means “the department of natural resources” in the State rule. These provisions were reviewed by EPA for consistency with the Federal requirements and are acceptable. The reference to Clean Units and Pollution Control Projects as set forth in 40 CFR 52.21 and 40 CFR 51.166 are not adopted by reference. In addition, the provision of the Federal rule (40 CFR 52.21(r)(6)), which exempts certain projects from recordkeeping, is not adopted, so that recordkeeping requirements apply to all modifications which use the actual-to-projected-actual test to show nonapplicability. Iowa intended these deviations from the Federal rule to address the Court ruling on EPA's reform rules, and EPA believes they are approvable. Have the requirements for approval of a SIP revision been met? The State submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document that is part of this docket, EPA believes that the revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. What action is EPA taking? We are approving revisions to Iowa's rule at Chapter 20, “Scope of Title—Definitions—Forms—Rules of Practice,” and Chapter 22, “Controlling Pollution,” as the revisions relate to the NSR regulations. We are also approving new Chapter 33, “Special Regulations and Construction Permit Requirements for Major Stationary Sources—Prevention of Significant Deterioration

(PSD)of Air Quality.” It should be noted that Iowa has no nonattainment areas so those portions of the NSR reform rules are not being addressed with this rulemaking. Statutory and Executive Order Reviews 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 final 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 the final approvals in 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 tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This final 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 approves a State rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. 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 CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This final 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.* ). 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 13, 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: May 2, 2007. John B. Askew, Regional Administrator, Region 7. Chapter I, 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 Q—Iowa 2. In § 52.820(c) the table is amended by: a. Revising the entries for 567-20.1 and 567-22.4. b. Adding in numerical order a heading for Chapter 33 and entries for 567-33.1, 567-33.2, 567-33.3, 567-33.4 to 567-33.8, 567-33.9 and 567-33.10. The revisions and additions read as follows: § 52.820 Identification of plan.

(c)* * * EPA-Approved Iowa Regulations Iowa citation Title State effective date EPA approval date Explanation Iowa Department of Natural Resources Environmental Protection Commission [567] * * * * * * * Chapter 20—Scope of Title—Definitions—Forms—Rule of Practice 567-20.1 Scope of Title N/A 5/14/07 [ *insert FR page number where the document begins* ] This rule is a non-substantive description of the Chapters contained in the Iowa rules. EPA has not approved all of the Chapters to which this rule refers. * * * * * * * Chapter 22—Controlling Pollution * * * * * * * 567-22.4 Special Requirements for Major Stationary Sources Located in Areas Designated Attainment or Unclassified

(PSD)11/1/2006 5/14/07 [ *insert FR page number where the document begins* ] * * * * * * * Chapter 33—Special Regulations and Construction Permit Requirements for Major Stationary Sources—Prevention of Significant Deterioration

(PSD)of Air Quality 567-33.1 Purpose 11/1/06 5/14/07 [ *insert FR page number where the document begins* ] 567-33.2 Reserved 11/1/06 5/14/07 [ *insert FR page number where the document begins* ] 567-33.3 Special construction permit requirements for major stationary sources in areas designated attainment or unclassified

(PSD)11/1/06 5/14/07 [ *insert FR page number where the document begins* ] 567-33.4 to 567-33.8 Reserved 11/1/06 5/14/07 [ *insert FR page number where the document begins* ] 567-33.9 Plantwide applicability limitations

(PALs)11/1/06 5/14/07 [ *insert FR page number where the document begins* ] 567-33.10 Exceptions to adoption by reference 11/1/06 5/14/07 [ *insert FR page number where the document begins* * * * * * * * [FR Doc. E7-9131 Filed 5-11-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2006-0692; FRL-8314-1] Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Redesignation of the Weirton, WV Portion of the Steubenville-Weirton, OH-WV 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Area's 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 West Virginia. The West Virginia Department of Environmental Protection (WVDEP) is requesting that the Brooke and Hancock County, West Virginia (Weirton) portion of the Steubenville-Weirton, OH-WV area (herein referred to as the “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 for Weirton that provides for continued attainment of the 8-hour ozone NAAQS for the next 12 years, until 2018. EPA is also approving the adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the Weirton 8-hour ozone maintenance plan for purposes of transportation conformity, and is approving those MVEBs. EPA is approving the redesignation request and the maintenance plan revision to the West Virginia SIP in accordance with the requirements of the CAA. DATES: *Effective Date:* This final rule is effective on June 13, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2006-0692. 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 *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 West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street, SE., Charleston, WV 25304. FOR FURTHER INFORMATION CONTACT: Amy Caprio,

(215)814-2156, or by e-mail at *caprio.amy@epa.gov* . SUPPLEMENTARY INFORMATION: I. Background On October 2, 2006 (71 FR 57905), EPA published a notice of proposed rulemaking

(NPR)for the State of West Virginia. The NPR proposed approval of West Virginia's redesignation request and a SIP revision that establishes a maintenance plan for Weirton that sets forth how Weirton will maintain attainment of the 8-hour ozone NAAQS for the next 12 years. The formal SIP revision was submitted by the WVDEP on August 3, 2006. Other specific requirements of West Virginia's redesignation request SIP revision for the maintenance plan and the rationales for EPA's proposed actions are explained in the NPR and will not be restated here. On October 19, 2006, EPA received a comment, from the West Virginia Division of Highways, in support of its October 2, 2006 NPR. Also, on October 28, 2006, EPA received adverse comments on the said October 2, 2006 NPR. A summary of the comments submitted and EPA's responses are provided in Section II of this document. However, errata were found on page 57912 of the NPR. On page 57912 (Table 4), an error occurred in EPA's calculation of the 2018 Ohio NO X point sources. The correct 2018 Ohio NO X point source should read 46.4 tons per day

(tpd)instead of 41.0 tpd. This error adversely affects the total NO X point sources and the 2018 Ohio total NO X emissions. The correct total NO X point sources should read 52.0 tpd instead of 46.6 tpd. Lastly, the 2018 Ohio total NO X emissions should read 55.3 tpd instead of 49.9 tpd. It should be noted that these errata do not affect the attainment of the 8-hour ozone standard or the demonstration of maintenance in the Area. II. Summary of Public Comments and EPA Responses *Comment:* The commenter stated that on behalf of the West Virginia Division of Highways, they would like to go on record as supporting the redesignation of Weirton from nonattainment to attainment. *Response:* EPA acknowledges the comment of support for our final action. *Comment:* The commenter notes that although there are no electrical generating units

(EGUs)in the Weirton portion of the Area, “significant” NO X emissions reductions are expected from 2002—2018 at two EGU's located in Steubenville. The commenter requests specific information on the controls at these plants and measures making these emissions reductions enforceable. *Response:* The Redesignation of Jefferson County, Ohio to Attainment of the 8-Hour Ozone Standard, 72 FR 711 (January 8, 2007) notes that Ohio's EGU NO X emissions control rules stemming from EPA's NO X SIP Call, October 27, 1998 (63 FR 57356), amendments to the NO X SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule

(CAIR)May 12, 2005 (70 FR 25162), to be implemented beyond 2006, will further lower NO X emissions in upwind areas, resulting in decreased ozone and ozone precursor transport into Jefferson County and the Steubenville-Weirton Area. This will also support maintenance of the ozone standard in this Area, which particularly benefits from the NO X SIP Call and CAIR. These two regulations focus on utility emissions in the Eastern United States and impose a permanent cap on overall emissions from affected sources. This cap is likely to minimize growth of this very important component of emissions in the Area. The emission projections for Jefferson County and the Steubenville-Weirton Area as a whole, coupled with the expected impacts of the States' EGU NO X rules and CAIR, lead to the conclusion that the Area should maintain the 8-hour ozone NAAQS throughout the required 10-year maintenance period and through 2018. The projected decreases in local VOC and local and regional NO X emissions indicate that peak ozone levels in the Area may actually further decline during the maintenance period. Based on the comparison of the projected emissions and the attainment year emissions, we conclude that the West Virginia Department of Environmental Protection (WVDEP) and the Ohio EPA have successfully demonstrated that the 8-hour ozone standard should be maintained throughout the Area. In addition, in this action EPA is approving the Maintenance Plan for Weirton and in a separate action has proposed approval of the Maintenance Plan for the Jefferson County (Steubenville) portion of the Area. Collectively, the Ohio and West Virginia Maintenance Plans demonstrate why those states believe that the Area will continue to maintain the 8-hour ozone standard for at least 10 years from the date of redesignation. Furthermore, the Contingency Plans, which are components of the Maintenance Plans, set forth the steps that the States will undertake to preserve attainment of the 8-hour ozone standard if air quality indicators show that the air quality of the Area has declined to the point when contingency measures to reverse that deterioration of air quality should begin being implemented. Therefore, continued maintenance of the 8-hour ozone standard will be assured independent of whether or not enforceable reductions are currently called for at the two Jefferson County EGUs. In short, if projected reductions from the Jefferson County EGUs do not occur, and if the measures from the NO X SIP call, CAIR and other ozone control measures that are currently implemented or will be implemented in the near future, fail to maintain the 8-hour ozone standard in the Area, the States of West Virginia and Ohio nevertheless will have, with the Contingency Plan provisions of their Maintenance Plans, a SIP-approved process for assuring that air quality in Steubenville-Weirton Area will continue to maintain the 8-hour ozone standard. *Comment:* The commenter states that the Weirton redesignation is based on 2002-2004 air quality data, and should instead be based on the most recent three years of air quality data, 2004-2006. *Response:* EPA disagrees that the 2006 data was available as a basis for redesignating Weirton to attainment, and also disagrees with the comment that the redesignation cannot be based on the quality assured 2002-2004 air quality data. EPA may redesignate an area to attainment of the 8-hour ozone NAAQS if three years of quality assured data indicate that the area has attained the standard and the most recent quality assured air quality data indicates that the area is still attaining the standard at the time of the redesignation. EPA has determined that Weirton has attained compliance with the 8-hour ozone NAAQS subsequent to the calendar year 2004 ozone season (April-October) based on three years (2002-2004) of quality assured data. It is also worth noting that while our determination that the Area has attained the standard is based on the 2002-2004 data, the 2005 calendar year quality assured data and the newly available quality assured data from 2006, indicate that the Area continues to attain the standard. The 2005 and 2006 data supports our conclusion in the NPR on October 2, 2006 (71 FR 57905) that emissions reductions in the Area can be contributed to permanent and enforceable measures throughout the Area and that air quality monitoring data indicate that the Area continues to attain the 8-hour ozone NAAQS. 1 1 The fourth highest 8-hour ozone monitoring values at the Hancock County, West Virginia (Weirton) monitor for 2006 were 0.085 ppm, 0.079 ppm, 0.079 ppm, and 0.077 ppm. The fourth highest 8-hour ozone monitoring values at the Jefferson County, Ohio (Steubenville) monitor for 2006 were 0.089, 0.083, 0.080 ppm, and 0.080 ppm. Thus the design values at both Area monitors for monitoring years 2004-2006 are still showing attainment of the 8-hour NAAQS with a value of 0.075 ppm at the Weirton monitor and 0.078 ppm at the Steubenville monitor. *Comment:* The commenter asks why the monitoring site in Jefferson County, Ohio was moved at the end of 2003, where the new site is in relation to the old one, and an explanation as to the acceptability of combining the data from the two sites. *Response:* The monitoring site in Jefferson County was relocated to a site 1/3 mile from the original site after 2003 because Ohio EPA lost site access to the original site. The new site was approved by EPA Region 5 and meets all siting criteria described in 40 CFR 58 Appendix E. The original and final sites are sufficiently close together and removed from sources of ozone precursors such that the two sites represent the same air quality. Therefore, the data from the two sites can be combined when calculating the three-year average ozone concentration. See Redesignation of Jefferson County, Ohio to Attainment of the 8-Hour Ozone Standard, 72 FR 711 (January 8, 2007). *Comment:* The commenter asserts that cold and wet summers, rather than enforceable emissions reductions are a significant cause of improvement of air quality in Weirton, although the commenter also asserts based on the number of days exceeding 84 ppb 2005 that the air quality is actually not improving. *Response:* In accordance with Appendix I to 40 CFR Part 50, compliance with the 8-hour ozone NAAQS is met at an ambient air monitoring site when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm; it is not based on the number of days which exceed the 8-hour ozone standard. Additionally, EPA uses the three-year averaging period to minimize year to year variations in the summer ( *i.e.* , ozone season) weather. *See* Redesignation of Pittsburgh, Pennsylvania, 66 FR 53094, 53100 (October 19, 2001). Therefore, the number of days exceeding 84 ppb are not relevant to a determination of whether an area (or portion thereof), has attained the 8-hour ozone NAAQS. Information relative to long term trends of West Virginia summer temperatures and rainfall-based data was obtained from the National Oceanic and Atmospheric Administration's

(NOAA)National Climate Data Center (please see attached). Based on EPA's review, this information shows that the summers 2000 through 2006 experienced year to year variations in average summer temperature and rainfall typical of the summer seasons in the State of West Virginia. Thus the improvement in air quality is not due to unusually cold and wet summers. Rather, the improvement in air quality is due to the implementation of permanent and enforceable measures as explained in the NPR. The permanent and enforceable measures listed in the Weirton NPR include the National Low Emissions Vehicle (NLEV), motor vehicle fleet turnover with new vehicles meeting the Tier 2 standards, and the Clean Diesel Program. These federal vehicle programs along with the NO X SIP Call resulted in a 3.0 tons per year

(tpy)decrease in VOC emissions and a 37.2 tpy decrease in NO X emissions throughout the Steubenville-Weirton Area between 2002 and 2004. Therefore, EPA believes that the improvement in 8-hour ozone air quality is a result of identifiable, permanent and enforceable reductions in ozone precursor emissions, not unusually cold and wet summers. *Comment:* The commenter requests 2006 monitoring data for the Weirton Area. *Response:* Preliminary (not quality assured) data is publicly available at the following Web sites: *http://www.epa.gov/air/data/* and/or *http://www.airnow.gov* . *See also,* footnote 1. Additionally, the United States Court of Appeals for the District of Columbia Circuit recently vacated EPA's April 30, 2004 “Final Rule to Implement the 8-Hour Ozone National Ambient Standard” (the Phase 1 implementation rule). *South Coast Air Quality Management District* v. *EPA* , 472 F.3d 882 (D.C. Cir. 2007). EPA issued a supplemental proposed rulemaking that set forth its views on the potential effect of the Court's ruling on this and other proposed redesignation actions. 72 FR 13452 (March 22, 2007). EPA proposed to find that the Court's ruling does not alter any requirements relevant to the proposed redesignations that would prevent EPA from finalizing these redesignations, for the reasons fully explained in the supplemental notice. EPA provided a 15-day review and comment period on this supplemental proposed rulemaking. The public comment period closed on April 6, 2007. EPA received six comments, all supporting EPA's supplemental proposed rulemaking, and supporting redesignation of the affected areas. EPA recognizes the support provided in these comments as well, but again, we do not believe any specific response to comments is necessary with respect to these comments. In addition, several of these comments included additional rationale for proceeding with these proposed redesignations. EPA had not requested comment on any additional rationale, does not believe any additional rationale is necessary, and similarly does not believe any specific response to these comments is necessary, and thus has not provided any. III. Final Action EPA is approving the State of West Virginia's August 3, 2006 redesignation request and maintenance plan because the requirements for approval have been satisfied. EPA has evaluated West Virginia's redesignation request, submitted on August 3, 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 Weirton has attained the 8-hour ozone standard. The final approval of this redesignation request will change the designation of the Weirton, West Virginia portion of the Area from nonattainment to attainment for the 8-hour ozone standard. EPA is approving the associated maintenance plan for Weirton, submitted on August 3, 2006, as a revision to the West Virginia SIP. EPA is approving the maintenance plan for Weirton because it meets the requirements of section 175A. EPA is also approving the MVEBs submitted by West Virginia in conjunction with its redesignation request. In this final rulemaking, EPA is notifying the public that we have found that the MVEBs for NO X and VOCs in the Weirton 8-hour ozone maintenance plan are adequate and approved for conformity purposes. As a result of our finding, Brooke and Hancock Counties must use the MVEBs from the submitted 8-hour ozone maintenance plan for future conformity determinations. The adequate and approved MVEBs are provided in the following table: Adequate and Approved Motor Vehicle Emissions Budgets (MVEBs) in Tons per Day

(TPD)Budget year NO X VOC 2009 2.8 2.0 2018 1.2 1.0 Weirton is subject to the CAA's requirements for basic ozone nonattainment areas until and unless it is redesignated to attainment. IV. 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 approves a state rule implementing a Federal standard. 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 July 13, 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 Weirton, 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 dioxide, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: May 4, 2007. James W. Newsom, Acting 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 XX—West Virginia 2. In § 52.2520, the table in paragraph

(e)is amended by adding an entry for the 8-Hour Ozone Maintenance Plan, Steubenville-Weirton, OH-WV Area at the end of the table to read as follows: § 52.2520 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 Steubenville-Weirton, OH-WV Area Brooke and Hancock Counties 08/03/06 05/14/07 [Insert page number where the document begins] PART 81—[AMENDED] 3. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 4. In § 81.349 the table entitled “West Virginia—Ozone (8-Hour Standard)” is amended by revising the entry for the Steubenville-Weirton, OH-WV Area to read as follows: § 81.349 West Virginia West Virginia—Ozone (8-Hour Standard) Designated area Designation a Date 1 Type Category/Classification Date 1 Type * * * * * * * Steubenville-Weirton, OH-WV Area Brooke County 05/14/07 Attainment Hancock County 05/14/07 Attainment * * * * * * * a Includes Indian country located in each county or area except otherwise noted. 1 This date is June 15, 2004, unless otherwise noted. [FR Doc. E7-9208 Filed 5-11-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 060427113-6113-01] RIN 0648-XA16 Fisheries Off West Coast States and in the Western Pacific; Modifications of the West Coast Commercial Salmon Fishery AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Modification of fishing seasons, landing and possession limits; request for comments. SUMMARY: NOAA Fisheries announces that the commercial fishery in the area from Cape Falcon, Oregon to the Oregon/California border and in the area from Horse Mountain to Point Arena, California was modified by two inseason actions. Inseason action #1 modified the previously scheduled open period in the area from Cape Falcon, Oregon to the Oregon/California border. This action also modified the open dates in the area from Horse Mountain to Point Arena, California. Inseason action #2 increased the landing and possession limit in the Fort Bragg subarea from April 23-27. All other restrictions and regulations remained in effect as announced for the 2006 Ocean Salmon Fisheries and previous inseason actions. DATES: Inseason action #1, in the area from Cape Falcon, Oregon to the Oregon/California border was effective from 0001 hours local time (l.t.) Tuesday, April 10, 2007, through 2359 hours l.t., Sunday, April 29, 2007. Inseason action #1 in the area from Horse Mountain to Point Arena, California was effective 0001 hours l.t. on April 9-13, 16-20, and 23-27 and remained open until the close of the last open period at 2350 l.t. Friday, April 27, 2007. Inseason action #2 in the area from Horse Mountain to Point Arena California was effective 0001 hours l.t. Monday April 23 through 2359 l.t. Friday April 27. After this time the fisheries remained closed until reopened subject to the 2007 management measures and regulations which were are announced, and published in the **Federal Register** (72 FR 24539, May 3,2007). Comments will be accepted through May 29, 2007. ADDRESSES: Comments on these actions must be mailed to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way N.E., Bldg. 1, Seattle, WA 98115-0070; or faxed to 206-526-6376. Comments can also be submitted via e-mail at the *2007salmonIA1.nwr@noaa.gov* address, or through the internet at the Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments, and include [0648-XA16] in the subject line of the message. Information relevant to this document is available for public review during business hours at the Office of the Regional Administrator, Northwest Region, NMFS. FOR FURTHER INFORMATION CONTACT: Sarah McAvinchey 206-526-4323. SUPPLEMENTARY INFORMATION: In the 2006 annual management measures for ocean salmon fisheries (71 FR 26254, May 4, 2006), NMFS announced the commercial fisheries in the area from Cape Falcon, Oregon to the Oregon/California border and from Horse Mountain to Point Arena, California. The 2006 management measures listed a March 15, 2007, opening date for the Newport, Coos Bay, Oregon Klamath Management Zone (KMZ)and Fort Bragg areas unless modified at the March 2007 Council meeting. The Newport, Coos Bay and Oregon KMZ subareas had fishing regulations that stated fishing was for all salmon except coho, with a 28-inch (71.1-cm) total length Chinook minimum size limit. The Fort Bragg area had the same requirements except that the Chinook total length minimum size limit was 27 inches (68.6 cm). On March 8, 2007, for Inseason action #1 and April 20, 2007 for Inseason action #2 the Regional Administrator

(RA)consulted with representatives of the Pacific Fishery Management Council, Oregon Department of Fish and Wildlife and California Department of Fish and Game. Information related to catch to date, 2007 projections, Chinook and coho catch rates, and effort data were reported. Inseason action #1 was taken because the data indicated that the lower abundance projections warranted shortening the fishing season from what was announced in the 2006 regulations. By reducing the open period and moving the opening date of the fishery to April the Council limited the fishery in these areas in order to provide more opportunity later in the 2007 season. Inseason action #2 was taken because adequate quota remained and an increase in the landing and possession limit from 20 fish per vessel per day to 30 fish per vessel per day would afford more fishing opportunity. As a result, on March 8, 2007, the states recommended, and the RA concurred, that effective from Tuesday, April 10 to Sunday, April 29 in the area from Cape Falcon, Oregon, to the Oregon/California border the fishery would be open for all salmon except coho, with a 100-fish per vessel per calendar week (Sunday through Saturday) landing and possession limit, with a requirement that fish caught in the area must be landed in the State of Oregon. The RA also concurred that in the area from Horse Mountain to Point Arena, California, the fishery would be open April 9-13, 16-20, and 23-27 for all salmon, except coho, with a 2000-fish total quota. For this area there was also a 20- fish per day per vessel landing and possession limit and a requirement that fish caught in the area must be landed in the area. Subsuquently, on April 20, 2007, the states recommended and the RA concurred that in the area from Horse Mountain to Point Arena, California, the landing and possession limit was 30 fish per vessel per day. These actions were necessary to conform to the 2006 management goals. The intended effect was to allow the fishery to operate within the seasons and quotas specified in the 2006 annual management measures and provide more harvest opportunity during the 2007 season. Modification in quota and/or fishing seasons is authorized by regulations at 50 CFR 660.409(b)(1)(i). The RA determined that the best available information indicated that the catch and effort data, and projections, supported the above inseason actions recommended by the states. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the date the action was effective, by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz. These actions do not apply to other fisheries that may be operating in other areas. Classification The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (71 FR 26254, May 4, 2006), the West Coast Salmon Plan, and regulations implementing the West Coast Salmon Plan 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time the fishery catch and effort data were collected to determine the extent of the fisheries, and the time the fishery modifications had to be implemented in order to allow fishers access to the available fish at the time the fish were available. The AA also finds good cause to waive the 30-day delay in effectiveness required under U.S.C. 553(d)(3), as a delay in effectiveness of these actions would limit fishers appropriately controlled access to available fish during the scheduled fishing season by unnecessarily restricting the fishery. These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: May 9, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-9223 Filed 5-11-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 070418089-7089-01; I.D. 040507G] RIN 0648-AV49 Fisheries in the Western Pacific; Bottomfish and Seamount Groundfish Fisheries; Closed Season AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; request for comments. SUMMARY: This interim rule closes Federal waters in the main Hawaiian Islands to commercial and recreational fishing for seven deepwater bottomfish species during May 15 through September 30, 2007. This action is intended to immediately address overfishing for these species in the Hawaiian Archipelago while a long-term management program is developed for the bottomfish multi-species complex. DATES: Effective 12:01 a.m. (0001 hrs) Hawaii-Aleutian Standard Time

(HST)on May 15, 2007, until 11:59 p.m. (2359 hrs) HST on September 30, 2007. Comments must be received on or before June 13, 2007. ADDRESSES: You may submit comments, identified by “0648-AV49” by any of the following methods: • E-mail: *AV49Bottomfish@noaa.gov* . Include “AV49” in the subject line of the message. Comments sent via e-mail, including all attachments, must not exceed a file size of 10 megabytes. • Federal e-Rulemaking Portal: *www.regulations.gov* . Follow the instructions for submitting comments. • Mail: William L. Robinson, Regional Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani Blvd. 1110, Honolulu, HI 96814. In accordance with NEPA, an Environmental Assessment

(EA)was prepared for this interim action, and is available from William L. Robinson (see ADDRESSES ). FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIR, 808-944-2271. SUPPLEMENTARY INFORMATION: Electronic Access This interim rule is accessible via the World Wide Web at the Office of the **Federal Register** 's web site *www.gpoaccess.gov/fr/index.html* . Background Bottomfish in Hawaii are managed according to the Fishery Management Plan for Bottomfish and Seamount Groundfish in the Western Pacific Region (Bottomfish FMP), which was developed by the Western Pacific Fishery Management Council (Council) and implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Hawaii bottomfish are managed as a single archipelagic-wide multi-species stock complex (bottomfish complex). The bottomfish complex comprises certain deep-slope snappers, groupers, and jacks. Fisheries and management programs for Hawaiian bottomfish occur in two large geographic areas, the Northwestern Hawaiian Islands

(NWHI)and the main Hawaiian Islands (MHI). Pursuant to Presidential Proclamation 8031 (June 15, 2006), commercial fishing in the area of the NWHI that is encompassed by the Papah naumoku kea Marine National Monument is limited to the eight valid Federal bottomfish permits effective on June 15, 2006. Bottomfish landings under these permits are limited to 350,000 lb (158,757 kg) annually, and may continue until June 15, 2011. Regulations codifying the terms of the Proclamation are found at 50 CFR 400.10. Regulations governing bottomfish fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and subpart E of 50 CFR part 665. NMFS, on behalf of the Secretary of Commerce, determined that overfishing was occurring on the bottomfish complex around the Hawaiian Archipelago, with the primary problem being excess fishing effort in the MHI. On May 27, 2005, NMFS requested the Council to take appropriate action to end overfishing (70 FR 34452, June 14, 2005). About 300 commercial vessels participate in the MHI bottomfish fishery, and recreational vessels are estimated at over 1,000. Fishermen use hooks and lines to target bottomfish over deep bottom slopes. Fishing trips are usually a day or less, and most fishermen participate in both bottomfish and pelagic (e.g., troll) fisheries. Except for a few full-time commercial bottomfish fishermen, most fish for bottomfish no more than 60 days a year. Many fishermen who fish for recreation also sell part of their catch to offset fishing expenses, making the distinction between recreational and commercial activities difficult. The total 2003 ex-vessel revenue from commercial bottomfish fishing in the MHI was an estimated $1,460,000 for landings of 273,000 lb (123,831 kg). Data from the MHI commercial fishery are collected through the State of Hawaii commercial fishing report program. There is no data reporting requirement for recreational fishing; recreational data are collected through surveys. Based on 2003 data, NMFS had estimated that fishing mortality needed to be decreased by 15 percent from 2003 levels in the MHI to end overfishing in the Hawaiian Archipelago. Accordingly, the Council began preparation of an amendment to the Bottomfish FMP that would have proposed prohibiting recreational and commercial fishermen from fishing for seven deep-water bottomfish management unit species in Federal waters of Hawaii's Penguin Bank and Middle Bank. Historically, those areas represented 16-20 percent of MHI bottomfish landings, and would have ended the overfishing. The deep-water species are onaga *Etelis coruscans* , ehu *E. carbunculus* , gindai *Pristipomoides zonatus* , kalekale *P. sieboldii* , opakapaka *P. filamentosus* , lehi *Aphareus rutilans* , and hapu´upu´u (also hapu´u) *Epinephelus quernus* . In September 2006, NMFS updated the status of stocks using 2004 data, and concluded that overfishing was still occurring, but that fishing effort in the MHI would have to be reduced by 24 percent from the 2004 level (greater than the 15 percent as targeted in the amendment being development) to bring archipelago-wide fishing mortality down to the maximum fishing mortality threshold. Although the Council had initially developed an FMP amendment to close Penguin and Middle Banks to bottomfish fishing, those management measures would be insufficient to reduce fishing effort by the required 24 percent. To immediately reduce fishing mortality while long-term management measures are developed, the Council requested at its 137th meeting in Honolulu, Hawaii, on March 15, 2007, that NMFS implement this interim rule to close all Federal waters around the MHI to commercial and recreational bottomfish fishing for the seven deep-water bottomfish management unit species during May through September 2007. This time period will maximize protection for bottomfish during their spawning season and minimize social and economic impacts to fishery participants, as other fishing opportunities are available during the summer, e.g., trolling for pelagic fishes. The closed season applies only in the MHI and will not affect importation of bottomfish into Hawaii. This interim action is intended to immediately reduce fishing mortality in the short term, and provide a sufficient time period for the Council to develop an FMP amendment containing management measures designed to prevent overfishing in the long term. The effectiveness of this interim action would be enhanced by a complementary closure of State waters by the State of Hawaii, as collaborative Federal and State actions would facilitate the immediate cessation of fishing mortality in both Federal and State waters on the bottomfish stock complex that is experiencing overfishing. During the interim closed season from May through September 2007, Council and NMFS staffs will develop the management measures to be proposed in an FMP amendment. Such measures may include, but are not limited to, additional seasonal closures; a Total Allowable Catch

(TAC)based on a reducing fishing mortality by 24 percent, the value from the most recent stock assessment, with a TAC mechanism that responds to necessary mortality reductions identified in future assessments; and a new Federal permit and data collection program for recreational bottomfish fishing. The revised recommendations are anticipated to be finalized by Council action in June 2007. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as this requirement is impracticable and contrary to the public interest. The Council previously took action to prepare a plan amendment to address the overfishing by reducing fishing effort by 15 percent. Before that amendment could be implemented, however, updated information indicated that effort must be reduced by 24 percent from 2004 effort levels. To respond to the new information, the Council must prepare a revised FMP amendment. In the meantime, no action has been taken to reduce fishing effort, and overfishing on bottomfish continues. There is a need to implement the seasonal closure immediately so that overfishing of the bottomfish stock complex can be addressed, and adverse impacts to public fishery resources can be reduced as soon as possible. These same reasons constitute good cause under authority contained in 5 U.S.C. 553(d)(3) to waive the 30-day delay in the effective date of this action. This interim rule has been determined to be not significant for purposes of Executive Order 12866. A regulatory flexibility analysis has not been prepared for this interim rule pursuant to the Regulatory Flexibility Act because NMFS is not required by section 553 of Title 5 of the United States Code, or any other law, to publish a general notice of proposed rulemaking for this rule. List of Subjects in 50 CFR Part 665 Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaii, Hawaiian Natives, Northern Mariana Islands, Reporting and recordkeeping requirements. Dated: May 9, 2007 William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 665 is amended as follows: PART 665—FISHERIES IN THE WESTERN PACIFIC 1. The authority citation for part 665 reads as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 665.62, add new paragraphs

(j)and

(k)to read as follows: § 665.62 Prohibitions.

(j)Fish for or possess any Hawaii Prohibited Bottomfish Management Unit Species, as specified in § 665.71, in the Main Hawaiian Islands Management Subarea during a closed season in violation of § 665.72(a).

(k)Sell or offer for sale any Hawaii Prohibited Bottomfish Management Unit Species, as specified in § 665.71, in violation of § 665.72(a) or (b). 3. Under subpart E, add a new § 665.71 to read as follows: § 665.71 Hawaii Prohibited Bottomfish Management Unit Species. Hawaii Prohibited Bottomfish Management Unit Species means the following species: Common name Local Name Scientific Name Silver jaw jobfish Lehi *Aphareus rutilans* Squirrelfish snapper Ehu *Etelis carbunculus* Longtail snapper Onaga *Etelis coruscans* Pink snapper Opakapaka *Pristipomoides filamentosus* Snapper Kalekale *Pristipomoides sieboldii* Snapper Gindai *Pristipomoides zonatus* Sea bass Hapu'upu'u *Epinephelus quernus* 4. Under subpart E, add a new § 665.72 to read as follows: § 665.72 Closed seasons.

(a)All fishing for, or possession of, any Hawaii Prohibited Bottomfish Management Unit Species, as specified in § 665.71, is prohibited in the Main Hawaiian Islands Management Subarea during May 15, 2007, through September 30, 2007, inclusive. All such species possessed in the Main Hawaiian Islands Management Subarea are presumed to have been taken and retained from that subarea, unless otherwise demonstrated by the person in possession of those species.

(b)Hawaii Prohibited Bottomfish Management Unit Species, as specified in § 665.71, may not be sold or offered for sale during May 15, 2007, through September 30, 2007, inclusive, except as otherwise authorized by law. [FR Doc. E7-9213 Filed 5-11-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070213033-7033-01] RIN 0648-XA23 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Catcher Processor Vessels Using Trawl Gear in the Bering Sea and Aleutian Islands Management Area AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY: NMFS is prohibiting directed fishing for Pacific cod by catcher processor vessels using trawl gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2007 second seasonal allowance of the Pacific cod total allowable catch

(TAC)specified for catcher processor vessels using trawl gear in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), May 10, 2007, through 1200 hrs, A.l.t., June 10, 2007. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area

(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The 2007 second seasonal allowance of the Pacific cod TAC specified for catcher processor vessels using trawl gear in the BSAI is 11,133 metric tons

(mt)as established by the 2007 and 2008 final harvest specifications for groundfish in the BSAI (72 FR 9451, March 2, 2007), for the period 1200 hrs, A.l.t., April 1, 2007, through 1200 hrs, A.l.t., June 10, 2007. See § 679.20(c)(3)(iii), § 679.20(c)(5), and § 679.20(a)(7)(i)(B). In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2007 second seasonal allowance of the Pacific cod TAC specified for catcher processor vessels using trawl gear in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 8,933 mt, and is setting aside the remaining 2,200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher processor vessels using trawl gear in the BSAI. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and

(f)apply at any time during a trip. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher processor vessels using trawl gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of May 8, 2007. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.20 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: May 9, 2007. James P. Burgess Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 07-2364 Filed 5-9-07; 1:57 pm]

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