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Code · REGISTER · 2007-10-01 · National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce · Notices

Notices. Final rule

25,532 words·~116 min read·/register/2007/10/01/07-4852

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

BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070706268-7513-02] RIN 0648-AV21 Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; Framework Adjustment 7 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues this final rule to implement measures contained in Framework Adjustment 7 (Framework 7) to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP).
Framework 7 will broaden the FMP stock status determination criteria for summer flounder, scup, and black sea bass, while maintaining objective and measurable criteria for identifying when the FMP stocks are overfished or approaching an overfished condition. The framework action will also establish acceptable categories of peer review for providing new or revised stock status determination criteria for the Council to use in its annual management measures for each species. This action is necessary to ensure that changes or modification to the stock status determination criteria constituting the best available peer reviewed scientific information are accessible for the management of these three species in as timely a manner as is possible.
The intended effect of this action is to improve the timeliness and efficiency of incorporating the best available scientific information, consistent with National Standards 1 and 2 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), into the management processes for the three species covered by the FMP. DATES: This rule is effective October 31, 2007. ADDRESSES: Copies of Framework Adjustment 7 are available from Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19901-6790.
The framework document is also accessible via the Internet at *http://www.nero.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy Analyst,
(978)281-9104. SUPPLEMENTARY INFORMATION: Background The proposed rule for Framework 7 was published in the **Federal Register** on August 6, 2007 (72 FR 43587). A complete discussion of the development and rationale for the framework appeared in the preamble of the proposed rule and is not repeated here. The current stock status determination criteria for summer flounder ( *Paralichthys dentatus* ), scup ( *Stenotomus chrysops* ), and black sea bass ( *Centropristas striata* ) are found in Amendment 12 to the FMP. Prior to the development of Framework 7, the Mid-Atlantic Fishery Management Council (Council) would be required to enact a framework adjustment or an amendment to the FMP to modify or replace these stock status determination criteria on a case-by-case basis. Stock assessment information is updated annually as part of the management process that is used to derive annual catch limits (e.g., Total Allowable Landings (TAL)). The updated assessment information is utilized in the regulatory processes for these three species outlined at §§ 648.100, 648.120, and 648.140. These annual “turn of the crank” updates typically make no changes to the existing stock status determination criteria and are performed by groups with technical expertise, but are not typically subject to formal peer reviews nor are the stock status determination criteria often recommended to be changed. Full assessments for these three stocks undergo periodic formal scientific peer review as part of the Northeast Fisheries Science Center's (NEFSC) Stock Assessment Workshop
(SAW)and Stock Assessment Review Committee
(SARC)process. These and other periodic formal assessments and subsequent peer reviews conducted for these stocks may result in recommendations to revise or use different stock status determination criteria as different or new approaches are applied to previously existing data, or to new, previously unexamined data. These types of assessments and peer reviews are distinguishable from the annual updates as they are often more comprehensive in nature and subject to rigorous scientific peer review that is consistent with the Office of Management and Budget
(OMB)Information Quality Bulletin for Peer Review. In the absence of the provisions contained in Framework 7 to more generally describe stock status determination criteria, when a full stock assessment and subsequent peer review recommended modification of existing or new stock status determination criteria for these species occurs it is likely that the new criteria would not be available for the Council's use for one or more annual management review cycles (i.e., a 1- to 2-year delay) while a framework adjustment or an amendment was developed and implemented. The increased flexibility in defining the stock status determination criteria contained in Framework 7, consistent with National Standards 1 and 2, will allow the Council to utilize the best available peer reviewed science within the annual management measures development process, thereby improving the timeliness of incorporating the most current, best available stock status determination criteria. Additionally, Framework 7 provides guidance on acceptable peer review practices, particularly for conducting reviews on stock assessments that generate modified or new stock status determination criteria that may not originate from the NEFSC SAW/SARC process, which is the primary stock assessment process for the Northeast Region. This guidance will help ensure that any such external review is sufficiently rigorous so that the resulting stock status determination advice may be considered by the Council as the best available science. In the unlikely circumstance that two or more sets of different but peer review accepted stock status determination criteria are available for the Council's use, the Council would still be required to adequately justify its final selection of one set over the other or others, consistent with national standard guidelines. Framework 7 also provides guidance on how the Council may convene its Scientific and Statistical Committee
(SSC)in the unlikely event that peer reviewed stock status determination criteria recommendations are unclear (i.e., lack of consensus from the reviewers), and how such information should be used in crafting management decisions should the peer review not specify such guidance. The SSC would, in such instances, only review information that lacks clarity; in instances where a formal peer review results in a consensus recommendation for use, that information is clearly the best available information and, as such, requires no additional review or input from the SSC prior to the Council using the information. Similarly, the SSC would not be needed to review peer review recommendations that reject modified or new stock status determination criteria because such information is not the best available (i.e., if new information is rejected in peer review, the existing stock status determination criteria remains the best available information). Comments and Response Two comments were received regarding the proposed rule. One comment did not address any aspect of the framework, instead raising questions about where commercial fisheries for summer flounder should be allowed to take place. As this comment is not directly related to the action of Framework 7, it is not responded to here. *Comment* : The commenter asserted that implementation of Framework 7 would allow continued overfishing of summer flounder, scup, and black sea bass stocks and that the framework allows an unspecified, upward adjustment to quotas that would further exacerbate overfishing. *Response* : NMFS acknowledges that all three species are currently overfished. Framework 7 makes no specific adjustment to either the current biological reference points used to define the status of these three stocks, nor does the framework make any adjustment to the management measures (e.g., TALs, recreational possession and size limits, etc.) used to eliminate overfishing in this or in future years. As outlined in the preamble to the final rule, Framework 7 is an administrative change focused on the mechanism through which the best available peer-reviewed information may be incorporated into the annual management process that sets quotas and other management measures that are aimed at ending overfishing and rebuilding stocks to their maximum sustainable yield levels. Annual management measures that are part of separate rulemaking are used to eliminate overfishing. Furthermore, Framework 7 contains no explicit adjustments to quotas for any of the three species. If, in the future, revised or new stock status determination criteria are developed and vetted for use through the peer review process outlined in Framework 7, there may be adjustments, either upward or downward, to quotas as the results of the stock status and peer review dictate. Classification The Administrator, Northeast Region, NMFS, determined that Framework Adjustment 7 is necessary for the conservation and management of the summer flounder, scup, and black sea bass fisheries and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This rule has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. Authority: 16 U.S.C. 1801 *et seq.* Dated: September 26, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. [FR Doc. E7-19348 Filed 9-28-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 070430095-7095-01] RIN 0648-XB09 Fisheries Off West Coast States and in the Western Pacific; Modifications of the West Coast Commercial Salmon Fishery; Inseason Action #3 and #4 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 the U.S.-Canada Border to Cape Falcon, Oregon and in the area from the U.S.-Canada Border to Leadbetter Point, Washington was modified by two inseason actions. Inseason action #3 in the area from Leadbetter Point to the U.S.-Canada Border decreased the landing and possession limit from 60 to 50 Chinook per vessel per open period. Inseason action #3 also closed commercial fishing in the area from the U.S.-Canada border to Cape Falcon Oregon on June 30, 2007. Inseason action #4 modified the landing and possession limit in the area from Leadbetter Point, Washington to the U.S.-Canada border for Chinook from 30 to 20 fish per vessel per open period, Saturday through Tuesday. All other restrictions and regulations remained in effect as announced for the 2007 Ocean Salmon Fisheries and previous inseason actions. DATES: Inseason action #3 in the area from Leadbetter Point to the U.S.-Canada border was effective from 0001 hours local time (l.t.) Saturday June 23 through 2359 hours l.t. Tuesday June 26, 2007. Also, inseason action #3 in the area from the U.S.-Canada border to Cape Falcon, Oregon was effective 0001 hours l.t. Saturday, June 30, 2007. Inseason action #4 was effective 0001 hours l.t. Saturday, July 28, 2007. Comments will be accepted through October 16, 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 *2007salmonIA3_4.nwr@noaa.gov* address, or on the internet at the Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments, and include 0648-XB09 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 2007 annual management measures for ocean salmon fisheries (72 FR 24539, May 3, 2007), NMFS announced the commercial fisheries in the area from the U.S.-Canada border to Cape Falcon, Oregon, and in the area from the U.S.-Canada border to Leadbetter Point, Washington. This area was open May 1 through earlier of June 30 or 10,850 Chinook quota. Beginning May 12, 2007 this area was open Saturday through Tuesday with a landing and possession limit of 60 Chinook per vessel for each four-day open period north of Leadbetter Point, for all salmon except coho. On June 21, 2007, for Inseason action #3, and July 28, 2007 for Inseason action #4 the Regional Administrator
(RA)consulted with representatives of the Pacific Fishery Management Council, Washington Department of Fish and Wildlife, and Oregon Department of Fish and Wildlife. Information related to catch to date, Chinook and coho catch rates, and effort data were reported. Inseason action #3 was taken because catch data indicated a reduction in the landing and possession limit would provide the opportunity for the full quota to be caught within the announced season. Eliminating the last day during the May-June open period also provided the opportunity for the next open period to begin within the quota. Inseason action #4 was taken because catch data indicated a reduction in the landing and possession limit would the opportunity for the full quota to be caught within the announced season. As a result, on June 21, 2007, the states recommended, and the RA concurred, that Inseason action #3 would be effective in the area from Leadbetter Point to the U.S.-Canada border from Saturday June 23 through Tuesday June 26, 2007. This action made the landing and possession limit 50 Chinook per vessel per open period. This action also closed the area from the U.S.-Canada border to Cape Falcon Oregon to commercial salmon fishing on June 30. Also, on Friday July 27, 2007 the states recommended, and the RA concurred, that Inseason action #4 in the area from Leadbetter Point to the U.S.-Canada border would be effective Saturday July 28, 2007. This action reduced the landing and possession limit for Chinook to 20 fish per vessel per open period. 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 (72 FR 24539, May 3, 2007), 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: September 25, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-19374 Filed 9-28-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 070430095-7095-01] RIN 0648-XC69 Fisheries Off West Coast States and in the Western Pacific; Modifications of the West Coast Commercial Salmon Fishery; Inseason Action #5, #6 and #7 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 three inseason actions in the ocean salmon fisheries. Inseason action #5, in the commercial fishery in the area from the Humbug Mountain, Oregon, to the Oregon-California Border (Oregon KMZ subarea), closed the fishery effective Tuesday, August 14, 2007. Inseason action #6, in the recreational fishery in the area from the U.S.-Canada Border to Leadbetter Point, Washington, (Neah Bay, La Push and Westport subareas), expanded the fishing days from 2 to 7 days per week effective Friday, August 17, 2007. Inseason action #7, in the commercial fishery from Cape Falcon, Oregon, to Humbug Mountain, Oregon, closed the non-selective coho fishery effective 11:59 p.m. Monday, August 20, 2007. All other restrictions and regulations remained in effect as announced for the 2007 Ocean Salmon Fisheries and previous inseason actions. DATES: Inseason action #5 was effective at 1200 hours local time (l.t.) Tuesday, August 14, 2007. Inseason action #6 was effective 0001 hours l.t. Friday, August 17, 2007. Inseason action #7 was effective 1159 hours l.t. Monday, August 20, 2007. Comments will be accepted through October 16, 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 *2007salmonIA567.nwr@noaa.gov* address, or on the internet at the Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments, and include 0648-XC69 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 2007 annual management measures for ocean salmon fisheries (72 FR 24539, May 3, 2007), NMFS announced the commercial fisheries in the area from Cape Falcon, Oregon, to the Oregon-California Border and recreational fisheries from the U.S.-Canada border to Humbug Mountain, Oregon. Commercial fisheries in the area from Humbug Mountain to the Oregon-California Border were open from August 1 through the earlier of August 29, or the attainment of a 1,800-Chinook quota. Fishing was open for all salmon except coho. The commercial non-selective coho fishery in the area from Cape Falcon, Oregon, to Humbug Mountain, Oregon, was open August 15 through the earlier of September 13 or the attainment of a 10,000 non-mark-selective coho quota. The non-selective coho quota of 10,000 includes the entire area from Cape Falcon to Humbug Mountain. The recreational fishery from the U.S.-Canada border to Leadbetter Point, Washington, was open 2 days per week with the Neah Bay and La Push areas being open Tuesday through Saturday and the Westport area open Sunday through Thursday. On August 13, 2007, for inseason action #5, August 15, 2007, for inseason action #6, and August 17, 2007 for inseason action #7 the Regional Administrator
(RA)consulted with representatives of the Pacific Fishery Management Council, Washington Department of Fish and Wildlife, California Department of Fish and Game and Oregon Department of Fish and Wildlife. Information related to catch to date, Chinook and coho catch rates, and effort data were reported. Inseason action #5 was taken because the quota in the area was projected to be met and in order to operate the fishery within the 2007 regulations 2007 the fishery had to be closed. Inseason action #6 was taken because catch data indicated an increase in the number of days allowed in the fishery would attempt to provide the opportunity for the full quota to be taken within the scheduled season. Inseason action #7 was taken because the non-selective fishery was approaching the quota and to attempt to ensure the quota was not exceeded the fishery had to be closed. As a result, on August 13, 15, and 17, 2007, the states recommended, and the RA concurred: Inseason action #5 would close the commercial fishery in the area from the Humbug Mountain, Oregon to the Oregon-California Border, effective Tuesday, August 14, 2007. Inseason action #6 in the recreational fishery would increase the number of fishing days per period from 2 to 7 days per period in the area from the U.S.-Canada Border to Leadbetter Point, Washington, effective Friday, August 17, 2007. Inseason action #7 in the commercial non-selective coho fishery would close from Cape Falcon, Oreon, to Humbug Mountain, Oregon, effective 11:59 p.m. Monday August 20, 2007. 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 (72 FR 24539, May 3, 2007), 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: September 25, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-19368 Filed 9-28-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 070430095-7095-01] RIN 0648-XC71 Fisheries Off West Coast States and in the Western Pacific; Modifications of the West Coast Commercial Salmon Fishery; Inseason Action #8 and #9 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 two inseason actions in the ocean salmon fisheries. Inseason action #8 modified the recreational fishery from Queets River, Washington, to Cape Falcon, Oregon (Westport and Columbia River subareas)and inseason action #9 modified the commercial fishery from Cape Falcon, Oregon, to Humbug Mountain, Oregon. Inseason action #8 transferred 5000 coho from the Westport subarea to the Columbia River subarea with a resulting increase in the Columbia river subarea quota of 4250 coho. Inseason action #9 reopened the non-selective coho fishery from August 25-28, 2007. All other restrictions and regulations remained in effect as announced for the 2007 ocean salmon fisheries and previous inseason actions. DATES: Inseason action #8 was effective at 0001 hours local time (l.t.) Thursday, August 23, 2007. Inseason action #9 was effective from 0001 l.t. Saturday, August 25 through Tuesday August 28, 2007. Comments will be accepted through October 16, 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 *2007salmonIA89.nwr@noaa.gov* address, or on the internet at the Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments, and include 0648-XC71 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 2007 annual management measures for ocean salmon fisheries (72 FR 24539, May 3, 2007), NMFS announced the commercial fisheries in the area from Cape Falcon, Oregon, to Humbug Mountain, Oregon, and recreational fisheries from Queets River, Washington, to Cape Falcon, Oregon. The commercial non-selective coho fishery in the area from Cape Falcon, Oregon, to Humbug Mountain, Oregon, was open August 15 through the earlier of September 13 or the attainment of a 10,000 non-mark-selective coho quota. The non-selective coho quota of 10,000 includes the entire area from Cape Falcon to Humbug Mountain. The recreational fishery in the Westport subarea had a 43,510 marked coho subarea quota. The recreational fishery in the Columbia River subarea had a 58,800 marked coho subarea quota. On August 22, 2007, for inseason action #8 and #9 the Regional Administrator
(RA)consulted with representatives of the Pacific Fishery Management Council, Washington Department of Fish and Wildlife, and Oregon Department of Fish and Wildlife. Information related to catch to date, Chinook and coho catch rates, and effort data were reported. Inseason action #8 was taken because the coho quota in the Columbia river subarea was projected to be met and in order to operate the fishery within the 2007 regulations a transfer from the Westport area was necessary. Inseason action #9 was taken because catch data indicated there was still quota available to be taken within the scheduled season, this fishery was previously closed because the quota was projected to be met. These action attempted to provide the opportunity for the full quota to be taken within the scheduled season. As a result, on August 22, 2007, the states recommended, and the RA concurred that inseason action #8 would be effective Thursday, August 23, 2007 with a transfer of 5,000 coho from the Westport subarea resulting in an increase in the Columbia River subarea quota of 4,250. This modified the Westport subarea quota to 38,510 and the Columbia River subarea quota to 63,050. The Columbia River subarea was also closed effective 11:59 p.m. Saturday, August 25, 2007. Inseason action #9 reopened the non-selective coho fishery effective from Saturday, August 25 to Tuesday, August 28, with a landing and possession limit of 50 coho per vessel per week, as previously announced. 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 (72 FR 24539, May 3, 2007), 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: September 25, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-19358 Filed 9-28-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 070430095-7095-01] RIN 0648-XC77 Fisheries Off West Coast States and in the Western Pacific; Modifications of the West Coast Commercial Salmon Fishery; Inseason Action #10 and #11. 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 two inseason actions in the ocean salmon fisheries. Inseason action #10 modified the recreational fishery from Queets River, Washington, to Cape Falcon, Oregon (Westport and Columbia River subareas)and inseason action #11 modified the commercial fishery from the Oregon-California border to Humboldt South Jetty, California (California KMZ subarea). Inseason action #10 transferred 10000 coho from the Westport subarea to the Columbia River subarea with a resulting increase in the Columbia river subarea coho quota of 8400. Inseason action #11 closed the California KMZ subarea to ocean salmon fishing effective 11:59 p.m. Wednesday, September 12, 2007. All other restrictions and regulations remained in effect as announced for the 2007 ocean salmon fisheries and previous inseason actions. DATES: Inseason action #10 was effective at 0001 hours local time (l.t.) Sunday, September 2, 2007. Inseason action #9 was effective at 11:59 l.t. Wednesday, September 12, 2007. Comments will be accepted through October 16, 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 *2007salmonIA89.nwr@noaa.gov* address, or on the internet at the Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments, and include 0648-XC71 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 2007 annual management measures for ocean salmon fisheries (72 FR 24539, May 3, 2007), NMFS announced the recreational fisheries from Queets River, Washington, to Cape Falcon, Oregon and commercial fisheries from the Oregon-California border to Humboldt South Jetty. The recreational fishery in the Westport subarea had a 43,510 marked coho subarea quota. The recreational fishery in the Columbia River subarea had a 58,800 marked coho subarea quota. The commercial fishery in the California KMZ subarea was open September 10 through the earlier of September 30, or the attainment of the 6,000 Chinook quota. On August 30, 2007, for inseason action #10 and September 12, 2007, for #11, the Regional Administrator
(RA)consulted with representatives of the Pacific Fishery Management Council, Washington Department of Fish and Wildlife, Oregon Department of Fish and Wildlife and California Department of Fish and Game. Information related to catch to date, Chinook and coho catch rates, and effort data were reported. Inseason action #10 was taken because the coho quota in the Columbia river subarea was projected to be met and in order to operate the fishery within the 2007 regulations a transfer from the Westport area was necessary. Inseason action #11 was taken because catch data indicated the quota was projected to be met well before the closing date in the area. The intent of these actions was to provide the opportunity for the full quota to be taken within the scheduled season. As a result, on August 30, 2007, for inseason #10 and September 12, 2007, for inseason #11, the states recommended, and the RA concurred that inseason action #8 would be effective Sunday, September 23, 2007, with a with a transfer of 10,000 coho from the Westport subarea resulting in an increase in the Columbia River subarea quota of 8,400. This modified the Westport subarea quota to 28,510 and the Columbia River subarea quota to 71,450. Inseason action #11 closed the area from the U.S.-Canada border to Humboldt South Jetty, California to commercial ocean salmon fishing. 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 (72 FR 24539, May 3, 2007), 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: September 25, 2007. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-19367 Filed 9-28-07; 8:45 am] BILLING CODE 3510-22-S 72 189 Monday, October 1, 2007 Proposed Rules SUSQUEHANNA RIVER BASIN COMMISSION 18 CFR Parts 806 and 808 Review and Approval of Projects AGENCY: Susquehanna River Basin Commission (SRBC). ACTION: Notice of proposed rulemaking and public hearing. SUMMARY: This document contains proposed rules that would amend project review regulations to clarify the definition of “agricultural water use” and to provide a qualified exception to the consumptive use approval requirements for agricultural water use projects. In addition, this proposed rule would make a technical correction to an error in the “Authority” citation for Part 808. DATES: The Commission has scheduled a public hearing on the proposed rules on Wednesday, November 7, 2007, at 2 p.m. Comments on these proposed rules may be submitted to the SRBC on or before November 15, 2007. The location of the public hearing is listed in the addresses section of this document. Additionally, individuals wishing to testify are asked to notify the Commission in advance, if possible, at the regular or electronic addresses given below. ADDRESSES: Comments may be mailed to: Mr. Richard A. Cairo, Susquehanna River Basin Commission, 1721 N. Front Street, Harrisburg, PA 17102-2391, or by e-mail to *rcairo@srbc.net.* The public hearing will be held in the Goddard Conference Room, Pennsylvania Department of Environmental Protection, Northcentral Regional Office, 208 West Third Street, Suite 101, Williamsport, PA 17701. Those wishing to testify are asked to notify the Commission in advance, if possible, at the regular or electronic addresses given below FOR FURTHER INFORMATION CONTACT: Richard A. Cairo, General Counsel, 717-238-0423; fax: 717-238-2436; e-mail: *rcairo@srbc.net.* Also, for further information on the proposed rulemaking, visit the Commission's Web site at *http://www.srbc.net.* SUPPLEMENTARY INFORMATION: Background and Purpose of Amendments The SRBC adopted final rulemaking on December 5, 2006, published at 71 FR 78570, December 29, 2006 establishing:
(1)The scope and procedures for review and approval of projects under Section 3.10 of the Susquehanna River Basin Compact, Pub. L. 91-575; 83 Stat. 1509 *et seq.* (the compact);
(2)special standards under Section 3.4(2) of the compact governing water withdrawals, consumptive use of water; diversions of the basin's waters, water conservation, and water use registration; and
(3)procedures for hearings and enforcement actions. The December 2006 rulemaking made extensive revisions to project review regulations that were promulgated in May 1995. Since 1995, SRBC has continued to suspend the application of its consumptive use regulation to agricultural water uses pending the implementation of a mitigation method that is more suited to agriculture's unique circumstances. The Commission's member states have taken definitive steps to support projects that will provide storage and release of water to mitigate agricultural water use in their jurisdictions and thus satisfy the standards for consumptive use mitigation set forth in 18 CFR 806.22. The proposed rulemaking would amend 18 CFR 806.4(a)(1) to provide an exception for agricultural water use projects from the consumptive use review and approval requirements of 18 CFR 806.4(a)(1) and (3), unless water is diverted for use beyond lands that are at least partially in the basin, and provided the Commission makes a determination that the state-sponsored projects are sufficient to meet the consumptive use mitigation standards contained in 18 CFR 806.22. A second amendment clarifies the definition of “agricultural water use” in 18 CFR 806.3, 806.4 and 806.6 by inserting the word “products” after the word “turf.” This will clarify that the maintenance of turf grass as part of a project or facility, such as a golf course, does not constitute an agricultural water use. Only the raising of turf products for sale such as sod would constitute an agricultural water use with this clarification. A third amendment corrects an error made as part of the December 5, 2006 rulemaking in the “Authority” citation to Part 808 by replacing the erroneous Sec. 3.5(9) with the correct Sec. 3.4(9). List of Subjects in 18 CFR Part 806 Administrative practice and procedure, Water resources. For the reasons set forth in the preamble, the Susquehanna River Basin Commission proposes to amend 18 CFR parts 806 and 808 and as follows: PART 806—REVIEW AND APPROVAL OF PROJECTS 1. The authority citation for part 806 continues to read as follows: Authority: Secs. 3.4, 3.5 (5), 3.8, 3.10 and 15.2, Pub. L. 91-575, 84 Stat. 1509 *et seq.* 2. In § 806.3, revise the definition of “agricultural water use” to read as follows: § 806.3 Definitions. *Agricultural water use.* A water use associated primarily with the raising of food, fiber or forage crops, trees, flowers, shrubs, turf products, livestock and poultry. The term shall include aquaculture. 3. In § 806.4, revise paragraphs (a)(1) introductory text, (a)(3) introductory text and (b)(3) to read as follows: § 806.4 Projects requiring review and approval.
(a)* * *
(1)*Consumptive use of water.* Any consumptive use project described below shall require an application to be submitted in accordance with § 806.13, and shall be subject to the standards set forth in § 806.22, and, to the extent that it involves a withdrawal from groundwater or surface water, shall also be subject to the standards set forth in § 806.23. Except to the extent that they involve the diversion of the waters of the basin, public water supplies shall be exempt from the requirements of this section regarding consumptive use; provided, however, that nothing in this section shall be construed to exempt individual consumptive users connected to any such public water supply from the requirements of this section. Provided the commission determines that low flow augmentation projects sponsored by the commission's member states provide sufficient mitigation for agricultural water use to meet the standards set forth in § 806.22, and except as otherwise provided below, agricultural water use projects shall not be subject to the requirements of this paragraph (a)(1). Notwithstanding the foregoing, an agricultural water use project involving a diversion of the waters of the basin shall be subject to such requirements unless the property, or contiguous parcels of property, upon which the agricultural water use project occurs is located at least partially within the basin.
(3)*Diversions.* Except with respect to agricultural water use projects not subject to the requirements of paragraph (a)(1), the projects described below shall require an application to be submitted in accordance with § 806.13, and shall be subject to the standards set forth in § 806.24. The project sponsors of out-of-basin diversions shall also comply with all applicable requirements of this part relating to consumptive uses and withdrawals.
(b)* * *
(3)Transfer of land used primarily for the raising of food, fiber or forage crops, trees, flowers, shrubs, turf products, livestock, or poultry, or for aquaculture, to the extent that, and for so long as, the project's water use continues to be for such agricultural water use purposes. 3. In § 806.6, revise paragraph (b)(3) to read as follows: § 806.6 Transfers of approval.
(b)* * *
(3)A project involving the transfer of land used primarily for the raising of food, fiber or forage crops, trees, flowers, shrubs, turf products, livestock or poultry, or for aquaculture, to the extent that, and for so long as, the project's water use continues to be for such agricultural water use purposes. PART 808—HEARINGS AND ENFORCEMENT ACTIONS 5. Revise the authority citation for part 808 to read as follows: Authority: Secs. 3.4 (9), 3.5 (5), 3.8, 3.10 and 15.2, Pub. L. 91-575, 84 Stat. 1509 *et seq.* Dated: September 21, 2007. Paul O. Swartz, Executive Director. [FR Doc. E7-19290 Filed 9-28-07; 8:45 am] BILLING CODE 7040-01-P DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1314 [Docket No. DEA-298P] RIN 1117-AB13 Combat Methamphetamine Epidemic Act of 2005: Fee for Self-Certification for Regulated Sellers of Scheduled Listed Chemical Products AGENCY: Drug Enforcement Administration (DEA), Department of Justice. ACTION: Notice of proposed rulemaking. SUMMARY: As part of its implementation of the Combat Methamphetamine Epidemic Act of 2005 (CMEA), “regulated sellers” or persons and entities selling scheduled listed chemical products at retail locations are required to self-certify with DEA relative to certain requirements of the CMEA. The Diversion Control Program is required to recover the full costs of the certification process, under the Controlled Substances Act; as such the DEA is proposing to charge regulated sellers, who are not DEA registrants, a fee for self-certification. DATES: Written comments must be postmarked, and electronic comments must be sent, on or before November 30, 2007. ADDRESSES: To ensure proper handling of comments, please reference “Docket No. DEA-298” on all written and electronic correspondence. Written comments being sent via regular mail should be sent to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA Federal Register Representative/ODL. Written comments sent via express mail should be sent to DEA Headquarters, Attention: DEA Federal Register Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, VA 22301. Comments may be directly sent to DEA electronically by sending an electronic message to *dea.diversion.policy@usdoj.gov.* Comments may also be sent electronically through *http://www.regulations.gov* using the electronic comment form provided on that site. An electronic copy of this document is also available at the *http://www.regulations.gov* Web site. DEA will accept attachments to electronic comments in Microsoft Word, WordPerfect, Adobe PDF, or Excel file formats only. DEA will not accept any file formats other than those specifically listed here. *Posting of Public Comments:* Please note that all comments received are considered part of the public record and made available for public inspection online at *http://www.regulations.gov* and in the DEA's public docket. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket. Personal identifying information and confidential business information identified and located as set forth above will be redacted and posted online and placed in the DEA's public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph. FOR FURTHER INFORMATION CONTACT: Mark W. Caverly, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537; Telephone
(202)307-7297. SUPPLEMENTARY INFORMATION: Background DEA implements the Comprehensive Drug Abuse Prevention and Control Act of 1970, often referred to as the Controlled Substances Act
(CSA)and the Controlled Substances Import and Export Act (21 U.S.C. 801-971), as amended. DEA publishes the implementing regulations for these statutes in Title 21 of the Code of Federal Regulations (CFR), Parts 1300 to 1399. These regulations are designed to ensure that there is a sufficient supply of controlled substances for legitimate medical, scientific, research, and industrial purposes and to deter the diversion of controlled substances to illegal purposes. The CSA mandates that DEA establish a closed system of control for manufacturing, distributing, and dispensing controlled substances. Any person who manufactures, distributes, dispenses, imports, exports, or conducts research or chemical analysis with controlled substances must register with DEA (unless exempt) and comply with the applicable requirements for the activity. The CSA as amended also requires DEA to regulate the manufacture and distribution of chemicals that may be used to manufacture controlled substances illegally. Listed chemicals that are classified as List I chemicals are important to the manufacture of controlled substances. Those classified as List II chemicals may be used to manufacture controlled substances. On March 9, 2006, the President signed the Combat Methamphetamine Epidemic Act of 2005 (CMEA), which is Title VII of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Pub. L. 109-177). The CMEA amends the CSA to change the regulations for selling nonprescription products that contain ephedrine, pseudoephedrine, phenylpropanolamine, their salts, optical isomers, and salts of optical isomers. DEA implemented the retail provisions of CMEA through an Interim Rule entitled “Retail Sales of Scheduled Listed Chemical Products; Self-Certification of Regulated Sellers of Scheduled Listed Chemical Products” published in the **Federal Register** September 26, 2006 (71 FR 56008, corrected at 71 FR 60609, October 13, 2006). In that Interim Rule, DEA extensively discussed its intent to publish this Notice of Proposed Rulemaking, including the various costs to be included in the certification fee and the methodology for calculating fees (see specifically 71 FR 56013-56015, corrected at 71 FR 60609, October 13, 2006). Section 886a of the Controlled Substances Act
(CSA)defines the Diversion Control Program as “the controlled substance and chemical diversion control activities of the Drug Enforcement Administration,” which are further defined as the “activities related to the registration and control of the manufacture, distribution and dispensing, importation and exportation of controlled substances and listed chemicals.” The CSA also states that reimbursements from the Diversion Control Fee Account “ * * * shall be made without distinguishing between expenses related to controlled substances activities and expenses related to chemical activities.” [Pub. L. 108-447 Consolidated Appropriations Act of 2005] In addition, Section 111(b)(3) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 (Pub. L. 102-395), codified at 21 U.S.C. 886a(3), requires that “fees charged by the Drug Enforcement Administration under its diversion control program shall be set at a level that ensures the recovery of the full costs of operating the various aspects of that program.” The CMEA of 2005 implements new requirements governing the sale of scheduled listed chemical products, defined as nonprescription drug products containing ephedrine, pseudoephedrine, or phenylpropanolamine. As part of these requirements, CMEA requires self-certification for all regulated sellers of scheduled listed chemical products, defining regulated seller to mean a retail distributor (including a pharmacy and mobile retail vendors). The CMEA requires that on and after September 30, 2006, a regulated seller or any of its employees must not sell scheduled listed chemical products unless it has self-certified to DEA, through DEA's Web site. The certification requires the regulated seller to confirm the following: • Its employees who will be engaged in the sale of scheduled listed chemical products have undergone training regarding provisions of CMEA. • Records of the training are maintained. • Daily sales to individuals do not exceed 3.6 grams of ephedrine, pseudoephedrine, or phenylpropanolamine. (Mobile retail vendors must also confirm that sales to an individual in a 30-day period do not exceed 7.5 grams.) • Nonliquid forms are packaged as required. • Scheduled listed chemical products are stored behind the counter or in a locked cabinet. • A written or electronic logbook containing the required information on sales of these products is maintained. • The logbook information will be disclosed only to federal, State, or local law enforcement and only to ensure compliance with Title 21 of the United States Code or to facilitate a product recall. The seller must train its employees and certify before either the seller or individual employees may sell scheduled listed chemical products. The certification is subject to the provisions of 18 U.S.C. 1001. A regulated seller who knowingly or willfully certifies to facts that are not true is subject to fines and imprisonment. The CMEA also exempts retail distributors from registration requirements under the CSA; however, in practice, retail distributors have not previously registered with DEA because they limited their sales to below-threshold quantities and to products sold in blister packs. Self-Certification Fee DEA considers the self-certification requirements of the CMEA to fall within the legal definition of control as governed by Section 886a of the CSA (see above). Accordingly, these activities fall under the general operation of the Diversion Control Program and are subject to the requirements of the Appropriations Act of 1993 that mandates that fees charged shall be set at a level that ensures the recovery of the full costs of operating the various aspects of the Diversion Control Program. The self-certification requirements of CMEA fall under these “various aspects.” Therefore, DEA is hereby proposing to charge a fee for each self-certification to comply with these statutory requirements to ensure that the full costs of operating the Diversion Control Program are covered by fees as required by law. The fee for certification will cover all associated costs, including the initial one-time costs of setting up the certification program, web site, and programmatic infrastructure, as well as ongoing costs associated with the provision of certifications, call center support, maintenance of the self-certification system, printing costs for certificates that regulated sellers cannot print, financial management, and other related costs. DEA has established a training program for its employees to implement new requirements of the CMEA, and must establish the infrastructure necessary for the self- certification program. Required systems include creation of history, renewal cycles, investigative tools, business validation rules, and development and maintenance of the self-certification Web site. Other DEA activities associated with self-certification and compliance with CMEA include enforcement and judicial proceedings. CMEA gives DEA the authority to prohibit a regulated seller from selling scheduled listed chemical products for certain violations of CMEA. If DEA issues an order to a regulated seller prohibiting that regulated seller from selling scheduled listed chemical products, the regulated seller is entitled to an administrative hearing if the seller files a timely request for a hearing. The costs of these enforcement activities and the subsequent proceedings must be supported through fees pursuant to the above described statutory requirements. However, these costs *are not* reflected in the proposed self-certification fees contained in this rulemaking, as DEA is uncertain of their utilization. Once DEA is able to determine the frequency of use of these tools and their associated costs, these costs will be recovered through fees associated with self-certification as established in future rulemakings. Regulated sellers submit a certification online via the DEA self-certification web site and will pay a fee by credit card at the time of each self-certification. DEA calculated this fee based on estimated set-up costs in Fiscal Year 2006 ($96,000) and Fiscal Year 2007 operating costs ($1,341,000) totaling $1,437,000, as shown in Table 1 below. The initial systems development and set-up costs will not be repeated in subsequent years. The operational and maintenance costs for Fiscal year 2008 are estimated to be $811,000. Thus, the total amount to be recovered for Fiscal Years 2006 through 2008 is $2,248,000. Total annual costs associated with operating the certification process include staff costs, operational and administrative costs, web hosting, monitoring and maintenance costs (including hardware and software maintenance), and annual inflation adjustments. To calculate the fee, DEA divided the total costs for Fiscal Years 2006 through 2008 by the anticipated population of affected regulated sellers of 73,000. As of April 10, 2007, 72,258 retailers had self-certified that they were in compliance with the rule. All costs are shown in the table below for Fiscal Years 2006 through 2008. The self-certification costs reflect the cost per each self-certification per each facility as required by CMEA. To minimize administrative and collection burdens, it is DEA's policy to round all fees up to the nearest dollar when calculating fees. This is done to ensure that the full cost of the Diversion Control Program is collected as mandated by statute. Therefore, the fee for self-certifications will be $16.00. Table 1.—Self-certification Costs and Fee Calculation Project detail 2006* 2007 2008 Total cost Planning $4,000 $37,000 $38,000 $79,000 Design, Development, Deployment 44,000 704,000 72,000 820,000 Call Center, Finance, Mail Room, Printing 36,000 426,000 433,000 895,000 Maintenance 12,000 174,000 177,000 363,000 Enhancements 91,000 91,000 Total 96,000 1,341,000 811,000 2,248,000 Population 73,000 73,000 Cost per certification 19.68 11.11 15.40 *2006 is only 1 month of operations. PLANNING 5 − FTE, 3% OF THEIR TIME, 1 − DI 5% OF THEIR TIME. Design, Development, Deployment 10% allocation of effort. Creation of Registration System* 2 months planning; 6 months development; 2 months testing, Q/A, CM, C&A, deployment. Operations Support Operations include Call Center, finance, distribution & printing. * Registration system includes creation of history, renewal cycles, investigative tools, business validation rules. Table 2.—Calculation of Fee Cost for FY2006-2008 Number estimated to self-certify Self-certification and one renewal Fee for self-certification $2,248,000 /(73,000 *2) = $15.40 = $16.00 Methodology Regarding Establishment of Fee CMEA specifically states that a separate certification is required for each separate location at which scheduled listed chemical products are sold. As such, mobile retail vendors must certify for each location at which sales transactions occur, e.g., a fairground one week, a convention center the next, etc. Similarly, large corporate chains such as chain pharmacies must certify for each individual location at which scheduled listed chemical products are sold. Each location must self-certify for itself. In its Interim Final Rule implementing the retail provisions of the CMEA (71 FR 56008, September 26, 2006; corrected at 71 FR 60609, October 13, 2006), DEA requested comments on who should be authorized to sign the self-certification for the regulated seller, given that the person must be in a position to confirm all the self-certification requirements listed above and should be authorized to sign documents for the regulated seller. Additionally, CMEA mandates self-certification for all regulated sellers irrespective of the extent such entities or persons handle scheduled listed chemical products. Accordingly, DEA may not alter the fee structure to account for the extent to which self-certifiers handle these products. An example would include adjusting self-certification fees according to sales volume or size of establishment. Finally, as mentioned elsewhere in this NPRM, CMEA requires that all persons selling scheduled listed chemical products at retail self-certify to DEA, regardless of whether those persons are registered with DEA to handle controlled substances or List I chemicals. In a separate Interim Final Rule (71 FR 56008, September 26, 2006; corrected at 71 FR 60609, October 13, 2006) implementing the retail provisions of the CMEA, DEA conducted an extensive Economic Impact Analysis in which it estimated approximately 89,000 persons would self-certify to sell scheduled listed chemical products at retail. A brief discussion of this Economic Impact Analysis is found below in this Notice of Proposed Rulemaking. DEA has used this Economic Impact Analysis in the establishment of fees, as well as actual information regarding the number of persons self-certified to sell scheduled listed chemical products, dividing the total costs of self-certification by the estimated number of persons who will self-certify. CMEA required persons wishing to continue to sell scheduled listed chemical products at retail to self-certify with DEA prior to September 30, 2006. In its Interim Final Rule establishing self-certification and other requirements, DEA established that certification must be renewed annually. However, to spread the population of self-certifiers throughout the year (i.e., to prevent all persons who are self-certified from continuing to renew in the month of September every year), DEA in its Interim Final Rule indicated that it will assign self-certifiers to one of 12 groups. Each group will have an expiration date that will be the last day of a month from 12 to 23 months after the initial filing. The expiration date is contained in each person's or entity's self-certification certificate. After the second certification, regulated sellers will be required to certify annually. Thus, between September 30, 2006, and the end of Fiscal Year 2008 on September 30, 2008, all self-certifiers will have initially self-certified and renewed their certification once, assuming they continue to sell scheduled listed chemical products at retail. In implementing the self-certification fee, DEA must comply with the CMEA as well as the Consolidated Appropriations Act of 1993 that requires that fees charged shall be set at a level that ensures the recovery of the full costs of operating the various aspects of the Diversion Control Program. In developing the self-certification program and fee structure, DEA considered two options. The first option would be to set an annual fee for certification. However, this methodology would not allow DEA to recover the full costs of the program for certification from fees, as persons selling scheduled listed chemical products will have initially self-certified prior to establishment of the fee. Therefore, DEA decided to establish a fixed fee for Fiscal Years 2006 through 2008, based on the total estimated operating costs of the self-certification process for those Fiscal Years and the anticipated population of regulated sellers that will be required to self-certify. This approach offers a clear fixed fee for this period to entities required to self-certify. To relieve administrative burdens for the regulated industry and DEA, and for simplicity in accounting and auditing, DEA has rounded these fee calculations up to the nearest dollar. The annual self-certification fee will be clearly defined on the self-certification web site. However, in setting this fee DEA notes that it is based on assumptions about the total number of regulated sellers who will be required to certify. Should the total number of regulated sellers be significantly more or less than 73,000, DEA may adjust the certification fee as appropriate through future rulemakings. Also, as noted above, this fee does not account for certain enforcement and judicial costs associated with self-certification. These costs *are not* reflected in the proposed self-certification fees contained in this rulemaking, as DEA is uncertain of their utilization. Once DEA is able to determine the frequency of use of these tools and their associated costs, these costs will be recovered through fees associated with self-certification as established in future rulemakings. In any case, DEA will not exceed its operating budget as authorized by Congress. In implementing this fee, DEA also notes that many of the affected regulated sellers are already registered with DEA to dispense controlled substances and therefore already pay a registration/reregistration fee to DEA. The CSA requires that all manufacturers, importers, exporters, distributors and dispensers (e.g., pharmacies) of controlled substances, and List I chemicals obtain an annual registration with DEA. This process also is under the administration of the Diversion Control Program. For example, pharmacies registered with the DEA to distribute controlled substances pay a three-year registration fee of $551 (an annual equivalent of $184). This annual (or three-year) registration fee supports the operations of the Diversion Control Program, including program priorities and field management oversight; coordination of major investigations; drafting and promulgating of regulations relating to the enforcement of the CSA and other legislation; advice and leadership on state legislation/regulation; legal control of drugs and chemicals not previously under federal control; control of imports and exports of licit controlled substances and chemicals; program resource planning and allocation, and investigation, inspection, and cooperative efforts with other law enforcement entities and the regulated industries, among other activities. DEA considered several options regarding charging fees to registrants and to the new non-registrants regulated pursuant to the Combat Methamphetamine Epidemic Act of 2005. DEA invites comment on its proposed decision regarding the structuring of self-certification fees. DEA considered charging the full costs of the self-certification aspects of the Diversion Control Program only to registrants. However, this would mean that registrants would subsidize the self-certification of non-registrants, and any costs attendant with those self-certifications. Alternatively, DEA could charge only non-registrants for the costs of the self-certification aspects of the Diversion Control Program, as registrants already pay fees to support the Program. However, if DEA were to charge the $2,248,000 cost of the self-certification aspects of the Diversion Control Program to the approximately 18,000 non-registrants, this would result in a renewal fee of $63 per non-registrant self-certifier. As DEA noted previously, both registrants and non-registrants are required to self-certify. Therefore, DEA has elected to spread the costs of self-certification across all registrants, but to waive the self-certification fee for persons registered with DEA. Additionally, in the course of developing the proposed fee structure, DEA considered an alternative of basing the level of the fee on the size of a business or the volume of the business's sales. Such a fee structure, for example, would allow small businesses below a certain threshold to self-certify without being charged the proposed $16 self-certification fee. In analyzing this option, DEA considered whether the $16 fee would pose a significant hurdle for small businesses and might potentially reduce access to these products if small businesses opted to discontinue carrying scheduled listed chemical products due to the annual cost of self-certification. Such a fee schedule would need to distinguish between small retailers who sell limited quantities and similarly-sized retailers who, based on their unusual sales volume, may present an increased concern about drug diversion. However, after careful consideration of this alternative, DEA was concerned that, while it may have the statutory authority to waive a fee under certain circumstances, the agency may not have sufficient statutory authority to collect the kinds of information needed to administer the type of waiver discussed above. DEA would first need to determine an equitable threshold for the size of business or volume of sales below which a waiver would be granted. As DEA does not have historical information regarding size of business or volume of sales, and is not aware of a source of such data, such a determination seems difficult. Further, DEA has concerns about what statute, if any, would provide statutory authority to collect sales data, or other similar information, from persons self-certifying to handle scheduled listed chemical products. If DEA has no statutory authority to collect sales or other information necessary to enforce the fee waiver, then it cannot verify sales or other information on which a waiver would potentially be based, and would have difficulty verifying the veracity of any waiver provisions. For those reasons, DEA has initially proposed not to waive the fee for self-certification based on size of business or volume of sales. DEA invites comment on its interpretation regarding its statutory authority and how to structure self-certification fees in the final rule. In addition, DEA would welcome information about what sort of data might be available to enforce a different fee schedule for small businesses. That said, DEA notes that while lowering or eliminating the fee depending on the size of a business would reduce the financial burden on small businesses, DEA would have to increase the proposed fee charged to the remaining covered entities to fully fund the self-certification program. In addition to the cost of the proposed self-certification fee, regulated sellers are currently required under existing DEA regulations to maintain a logbook, store covered products behind the counter, and train staff concerning sales and recordkeeping. Because of the costs associated with these existing requirements, DEA currently does not anticipate that the proposed $16 self-certification fee will result in a significant incremental increase in the relative costs of the program for entities carrying covered products, and thus does not currently believe the fee will pose a barrier to access. DEA encourages commenters to provide information on this issue. While existing registrants are required by the CMEA to self-certify with DEA if selling scheduled listed chemical products, the self-certification fee will be waived upon submission of an active DEA registration number because these registrants already pay an annual fee (or annual fee equivalent) to support the operations of the Diversion Control Program. DEA requests comments on this aspect of this rulemaking. Regulatory Certifications Regulatory Flexibility Act This rulemaking has been drafted in accordance with the provisions of the Regulatory Flexibility Act (5 U.S.C. 601-612). The Administrator of DEA hereby certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The proposed rule will affect a substantial number of small entities, but will not have a significant economic effect. The fee is minimal—$16 a year. In its Interim Final Rule implementing the retail provisions of the CMEA (71 FR 56008, September 26, 2006; corrected at 71 FR 60609, October 13, 2006), DEA estimated that the other implementation costs associated with the retail sale of scheduled listed chemical products were also low. DEA estimated that the time required for training sales personnel and filing the self-certification is less than three hours a year. Many of the smallest firms, which are likely to be convenience stores, may limit their sales to single packages of pseudoephedrine where the package contains not more than 60 milligrams. Such sales are exempt from the recordkeeping requirements of the CMEA, which would eliminate the need for logbooks and checking of identification. There will be some cost to move the product behind the counter, but these moves will make open display areas available for other products; the shelf-space costs will, therefore, be offset to some degree. For firms that conduct sales transactions subject to all of the CMEA requirements, most of the cost will derive from the cost of checking identification and completing the logbook entries. That cost will depend on the number of sales. DEA has determined that the smallest stores sold between $20 and $40 a month in these products. This level of sales is the equivalent of five to ten sales per month of packages covered by the logbook requirement or, at the upper limit, about an additional $3.50 per month in transaction costs for the time required to check the identification. For the smallest firms, the annual cost of the rule, with the fee, is likely to be less than $100. The smallest firms potentially covered are general merchandise stores where the average sales of the smallest firms are $60,000 a year according to the 2002 Retail Trade-Subject Series of the Economic Census. The smallest firms in the other sectors, except for discount department stores and superstores, have annual sales of between $120,000 and $150,000. There are no discount department stores or superstores with annual sales of less than $1 million and $5 million, respectively. The annual fee, therefore, would represent less than 0.03 percent of sales for the smallest store and generally about 0.01 percent of sales. The total cost of the rules for retail sales for the smallest firms is less than 0.2 percent of sales. Executive Order 12866 The Deputy Administrator further certifies that this rulemaking has been drafted in accordance with the principles in Executive Order 12866 Section 1(b). It has been determined that this is a significant regulatory action. Therefore, this action has been reviewed by the Office of Management and Budget. *Regulated Sellers.* As of April 10, 2007, 72,258 retailers had self-certified with DEA. Table 3 presents the number of retailers by sector and indicates whether they have indicated that they are DEA registrants. Table 3.—Sectors Selling Scheduled Listed Chemical Products NAICS Registrants certified Non-registrants certified 44511 Grocery stores 5,628 913 44611 Pharmacy and drug stores 42,769 1,513 452112 Discount Department Stores 2,854 46 45291 Warehouse Clubs and Superstores 2,948 3 Subtotal 54,199 2,475 44512 Convenience stores 12 6,166 44711 Gas Stations with convenience stores 38 8,377 45299 All other general merchandise stores 19 672 Other 173 127 Total 54,441 17,817 *Costs/Benefits.* As discussed in the previous sections, DEA has estimated costs of $2,248,000 for Fiscal Years 2006 through 2008 for DEA to establish and support the regulated seller self-certification program, which CMEA mandates. As required by law, this cost would be recovered from regulated sellers through a self-certification fee. As noted in the previous section, the proposed fee imposes a minimal burden on regulated sellers. CMEA requires self-certification as a condition of selling these products. The fee will allow DEA to operate a program needed to permit regulated sellers to continue offering scheduled listed chemical products to their customers. Executive Order 12988 This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform. Executive Order 13132 This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120,000,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Congressional Review Act This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act (Congressional Review Act). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 21 CFR Part 1314 Drug traffic control, Reporting and recordkeeping requirements. For the reasons set out above, 21 CFR part 1314 is proposed to be amended as follows: PART 1314—RETAIL SALE OF SCHEDULED LISTED CHEMICAL PRODUCTS 1. The authority citation for part 1314 is proposed to be revised to read as follows: Authority: 21 U.S.C. 802, 830, 842, 871(b), 875, 877, 886a. 2. Section 1314.42 is proposed to be added to read as follows: § 1314.42 Self-certification fee; time and method of fee payment.
(a)A regulated seller shall pay a fee for each self-certification. For each initial application to self-certify, and for the renewal of each existing self-certification, a regulated seller shall pay a fee of $16.
(b)The fee for self-certification shall be waived for any person holding a current, valid DEA registration as a pharmacy to dispense controlled substances.
(c)A regulated seller shall pay the fee at the time of self-certification.
(d)Payment shall be made by credit card.
(e)The self-certification fee is not refundable. Dated: September 19, 2007. Michele M. Leonhart, Deputy Administrator. [FR Doc. E7-19215 Filed 9-28-07; 8:45 am] BILLING CODE 4410-09-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 51 [EPA-HQ-OAR-2006-0948; FRL-8475-7] RIN 2060-AN75 Air Quality: Revision to Definition of Volatile Organic Compounds—Exclusion of Compounds AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency
(EPA)is proposing to revise EPA's definition of volatile organic compounds
(VOCs)for purposes of preparing State implementation plans
(SIPs)to attain the national ambient air quality standard for ozone under Title I of the Clean Air Act (Act). This proposed revision would add compounds to the list of compounds excluded from the definition of VOC on the basis that these compounds make a negligible contribution to tropospheric ozone formation. The compounds under consideration are propylene carbonate and dimethyl carbonate. The EPA is inviting comment on an alternative evaluation criteria for exempting one of these compounds (propylene carbonate), methods for tracking changes in the use and emissions of both of these compounds and their potential substitutes, and the potential for health risks that may result from this action. DATES: Comments must be received on or before October 31, 2007. *Public Hearing:* If anyone contacts us requesting to speak at a public hearing on or before October 16, 2007, we will hold a public hearing. Additional information about the hearing would be published in a subsequent **Federal Register** notice. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0948, by one of the following methods: • *www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail: a-and-rDocket@epa.gov.* • *Fax:* 202-566-9744. • *Mail:* Docket ID No. EPA-HQ-OAR-2006-0948, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Avenue, Northwest, Washington, DC 20460. • *Hand Delivery:* EPA Docket Center, U.S. Environmental Protection Agency, 1301 Constitution Avenue, Northwest, Room: 3334, Mail Code: 2822T, Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2006-0948. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0948. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov,* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Docket ID No. EPA-HQ-OAR-2006-0948, EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue, Northwest, 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 Docket ID No. EPA-HQ-OAR-2006-0948 is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: William L. Johnson, Office of Air Quality Planning and Standards, Air Quality Strategies and Standards Division, Mail code C539-02, Research Triangle Park, NC 27711, telephone
(919)541-5245.; fax number: 919-541-0824; e-mail address: *Johnson.WilliamL@epa.gov.* *Public Hearing:* To request a public hearing or information pertaining to a public hearing on this document, contact Ms. Pamela S. Long, Air Quality Policy Division, Mail code C504-03, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, telephone
(919)541-0641, facsimile number
(919)541-5509, electronic e-mail address: *long.pam@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? You may be an entity potentially affected by this proposed policy change if you use or emit propylene carbonate or dimethyl carbonate. States which have programs to control VOC emissions will also be affected by this proposed change. Category Examples of affected entities Industry Industries that make and use coatings, adhesives, inks or which perform paint stripping or pesticide application. States States that control VOC. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this proposed action. This table lists the types of entities that EPA is now aware of that could potentially be affected by this action. Other types of entities not listed in the table could also be affected. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. This proposed action has no substantial direct effects on industry because it does not impose any new mandates on these entities, but, to the contrary, removes two chemical compounds from the regulatory definition of VOC, and therefore from regulation for Federal purposes. B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit this information to EPA through EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. Send or deliver information identified as CBI only to the following address: Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-2006-0948. 2. *Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. C. How Can I Find Information About a Possible Public Hearing? Persons interested in presenting oral testimony should contact Ms. Pamela S. Long, New Source Review Group, Air Quality Policy Division (C504-03), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, telephone number
(919)541-0641, at least 2 days in advance of the public hearing. Persons interested in attending the public hearing should also contact Ms. Long to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning these proposed changes. D. How Is This Preamble Organized? The information presented in this preamble is organized as follows: Outline I. General Information A. Does This Action Apply to Me? B. What Should I Consider as I Prepare My Comments for EPA? C. How Can I Find Information About a Possible Public Hearing? D. How Is This Preamble Organized? II. Background A. Propylene Carbonate B. Dimethyl Carbonate III. Proposed Action IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12848: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations II. Background Tropospheric ozone, commonly known as smog, occurs when VOCs and nitrogen oxides (NO <sup>X</sup> ) react in the atmosphere. Because of the harmful health effects of ozone, EPA and State governments limit the amount of VOCs and NO <sup>X</sup> that can be released into the atmosphere. The VOCs are those organic compounds of carbon which form ozone through atmospheric photochemical reactions. Different VOCs have different levels of reactivity—that is, they do not react to form ozone at the same speed or do not form ozone to the same extent. Some VOCs react slowly, and changes in their emissions have limited effects on local or regional ozone pollution episodes. It has been EPA's policy that organic compounds with a negligible level of reactivity should be excluded from the regulatory definition of VOC, so as to focus VOC control efforts on compounds that do significantly increase ozone concentrations. The EPA also believes that exempting such compounds creates an incentive for industry to use negligibly reactive compounds in place of more highly reactive compounds that are regulated as VOCs. The EPA lists these negligibly reactive compounds in its regulations (at 40 CFR 51.100(s)) and excludes them from the definition of VOCs. Since 1977, EPA has used the reactivity of ethane as the threshold for determining negligible reactivity. Compounds that are less reactive than, or equally reactive to, ethane under the assumed conditions may be deemed negligibly reactive. Compounds that are more reactive than ethane continue to be considered reactive VOCs and therefore subject to control requirements. The selection of ethane as the threshold compound was based on a series of smog chamber experiments that underlay the 1977 policy. In the past, EPA has considered three different metrics to compare the reactivity of a specific compound to that of ethane:
(i)The reaction rate constant with the hydroxyl radical (known as k <sup>OH</sup> ),
(ii)maximum incremental reactivities
(MIR)expressed on a reactivity per gram basis, and
(iii)MIR expressed on a reactivity per mole basis. Table 1 presents these three reactivity metrics for ethane and for the two compounds discussed in this proposed rule. Differences between these three metrics are discussed below. Table 1.—Reactivities of Ethane and Compounds Considered for Exemption Compound k <sup>OH</sup> (cm 3 /molecule-sec) MIR (g O <sup>3</sup> /mole VOC) MIR (g O <sup>3</sup> /gram VOC) Ethane 2.4 × 10 − 13 9.3 0.31 Propylene carbonate 6.9 × 10 − 13 25.5 0.25 Dimethyl carbonate 3.49 × 10 − 13 5.31 0.059 Notes: 1. k <sup>OH</sup> value for ethane is from: R. Atkinson., D. L. Baulch, R. A. Cox, J. N. Crowley, R. F. Hampson, Jr., R. G. Hynes, M. E. Jenkin, J. A. Kerr, M. J. Rossi and J. Troe (2004), Summary of Evaluated Kinetic and Photochemical Data for Atmospheric Chemistry. Web version, 2005 *http://www.ibiblio.org/iupac-ki/summary/IUPACsumm_web_March2005.pdf* . 2. k <sup>OH</sup> value for propylene carbonate is reported in: W.P.L. Carter, D. Luo, I.L. Malkina, E.C. Tuazon, S.M. Aschmann, and R. Atkinson (July 8, 1996), “Investigation of the Atmospheric Ozone Formation Potential of t-butyl Alcohol, N-Methyl Pyrrolidinone and Propylene Carbonate.” University of California—Riverside. * ftp://ftp.cert.ucr.edu/pub/carter/pubs/arcorpt.pdf.* 3. k <sup>OH</sup> value for dimethyl carbonate is reported in: Y. Katrib, G. Deiber, P. Mirabel, S. LeCalve, C. George, A. Mellouki, and G. Le Bras (2002), “Atmospheric loss processes of dimethyl and diethyl carbonate,” J. Atmos. Chem., 43: 151-174. 4. All maximum incremental reactivities or MIR (g O <sup>3</sup> /g VOC) values are from: W. P. L. Carter, “Latest VOC Reactivity tabulations for SAPRC-99 Mechanism” (updated 2/5/03) *ftp://ftp.cert.ucr.edu/pub/carter/SAPRC99/r02tab.xls.* 5. MIR (g O <sup>3</sup> /mole VOC) values were calculated from the MIR (g O <sup>3</sup> /g VOC) values by determining the number of moles per gram of the relevant organic compound. The k OH is the reaction rate constant of the compound with the OH radical in the air. This reaction is typically the first step in a series of chemical reactions by which a compound breaks down in the air and participates in the ozone forming process. If this step is slow, the compound will likely not form ozone at a very fast rate. The k OH values have long been used by EPA as a measure of photochemical reactivity and ozone forming activity, and they have been the basis for most of EPA's previous exclusions of negligibly reactive compounds. The k OH metric is inherently molar, i.e., it measures the rate at which molecules react. The MIR values, both by mole and by mass, are more recently developed measures of photochemical reactivity derived from a computer-based photochemical model. These measures consider the complete ozone forming activity of a compound, not merely the first reaction step. Further explanation of the MIR metric can be found in: W. P. L. Carter, “Development of Ozone Reactivity Scales for Volatile Organic Compositions,” Journal of the Air & Waste Management Association, Vol. 44, 881-899, July 1994. The MIR values are usually expressed either as grams of ozone formed per mole of VOC (molar basis) or as grams of ozone formed per gram of VOC (mass basis). For comparing the reactivities of two compounds, using the molar MIR values considers an equal number of molecules of the two compounds. Alternatively, using the mass MIR values compares an equal mass of the two compounds, which will involve different numbers of molecules, depending on the relative molecular weights. The molar MIR comparison is consistent with the original smog chamber experiments, which compared equal molar concentrations of individual VOCs, that underlie the original selection of ethane as the threshold compound. It is also consistent with previous reactivity determinations based on inherently molar k OH values. The mass MIR comparison is consistent with how MIR values and other reactivity metrics are applied in reactivity-based emission limits, specifically the California Air Resources Board rule for aerosol spray paints (see *http://www.arb.ca.gov/consprod/regs/apt.pdf* ). The choice of molar basis versus mass basis is significant. Given the relatively low molecular weight of ethane, use of the mass basis tends to result in more VOCs falling into the “negligibly reactive” class versus the molar basis. This means that, in some cases, a compound might be considered less reactive than ethane and eligible for VOC exemption under the mass basis but not under the molar basis. One of the compounds considered in this proposal falls into this situation, where the molar MIR value is greater than that of ethane, but the mass MIR value is less than that of ethane. This compound is propylene carbonate. The EPA has considered the choice between a molar or mass basis for the comparison to ethane in past rulemakings and guidance. The design of the VOC exemption policy, including the choice between a mass and mole basis, has been critiqued in the published literature. 1 Most recently, in “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” published on September 13, 2005 (70 FR 54046), EPA stated: 1 Basil Dimitriades, “Scientific Basis of an Improved EPA Policy on Control of Organic Emissions for Ambient Ozone Reduction.” Journal of the Air & Waste Management Association, 49:831-838, July 1999. “ * * * a comparison to ethane on a mass basis strikes the right balance between a threshold that is low enough to capture compounds that significantly affect ozone concentrations and a threshold that is high enough to exempt some compounds that may usefully substitute for more highly reactive compounds. * * * When reviewing compounds that have been suggested for VOC exempt status, EPA will continue to compare them to ethane using k OH expressed on a molar basis and MIR values expressed on a mass basis.” Relying on a comparison of mass MIR values consistent with this guidance, EPA is proposing to revise its definition of VOC at 40 CFR 51.100(s) to add propylene carbonate and dimethyl carbonate to the list of compounds that are exempt because they are negligibly reactive because they are equal to or less reactive than ethane on a mass basis. For the first of these compounds, EPA is inviting comment on the alternative use of a molar basis for the comparison of these compounds to ethane. EPA has become aware of revised MIR values posted by Dr. W.P.L. Carter on his Web site 2 as part of a report for the California Air Resources Board
(CARB)which indicate changes in the reactivity values of the two compounds being proposed for exemption as well as for that of ethane. In particular, the new data indicate that propylene carbonate has an MIR value that is essentially equal to that of ethane on a gram basis. These new MIR values are shown in Table 2 below: 2 These new MIR values may be found at *http://pah.cert.ucr.edu/carter/SAPRC/scales07.xls.* Table 2.—2007 Revised MIR Values Compound MIR (g O <sup>3</sup> /gram VOC) Ethane 0.26 Propylene carbonate 0.26 Dimethyl carbonate 0.055 EPA understands that these numbers were produced by Carter under a contract with the CARB and are reported in the August 31, 2007 report “Development of the SAPRC-07 Chemical Mechanism and Updated Ozone Reactivity Scales.” CARB will consider this report as part of their investigation of whether MIR values in CARB regulations need to be revised. EPA is not relying on these new MIR values for this proposal, but we do not think the new MIR values would prohibit us from proceeding with the exemptions because the two compounds being proposed for exemption would still be equal to or less than ethane in reactivity. We invite comments on the whether EPA should use this new data for the VOC exemptions being considered in this notice. The technical rationale for recommending an exemption for each of the individual compounds is given below: A. Propylene Carbonate Huntsman Corporation submitted a petition to EPA on July 27, 1999, requesting that propylene carbonate be exempted from VOC control based on its low reactivity relative to ethane. Propylene carbonate (CAS registry number 108-32-7) is an odorless non-viscous clear liquid with a low vapor pressure (0.023 mmHg at 20 °C) and low evaporation rate compared to many other commonly used organic solvents. It has been used in cosmetics, as an adhesive component in food packaging, as a solvent for plasticizers and synthetic fibers and polymers, and as a solvent for aerial pesticide application. Huntsman submitted several pieces of information to support its petition, all of which have been added to the docket for this action. One of these pieces of information was “Investigation of the Atmospheric Ozone Formation Potential of t-butyl Alcohol, N-Methyl Pyrrolidinone and Propylene Carbonate” by William P.L. Carter, Dongmin Luo, Irina L. Malkina, Ernesto C. Tuazon, Sara M. Aschmann, and Roger Atkinson, University of California at Riverside, July 8, 1996. Table 8 of that reference lists the MIR for propylene carbonate (on a gram basis) as 1.43 times higher than that of ethane. However, in Table 1 above, EPA has shown a 2003 MIR value that was taken from more recent 2003 data from Dr. Carter's Web site. This 2003 MIR value is lower than that of ethane on a mass basis. From the data in Table 1, it can be seen that propylene carbonate has a higher k OH value than ethane, meaning that it initially reacts more quickly in the atmosphere than ethane. A molecule of propylene carbonate is also more reactive than a molecule of ethane, as shown by the molar MIR (g O 3 /mole VOC) values, since equal numbers of moles have equal numbers of molecules. However, a gram of propylene carbonate is less reactive, or creates less ozone on the day of its emission to the atmosphere, than a gram of ethane. This is because propylene carbonate has a molecular weight (102), which is over three times that of ethane (30), thus requiring less than a third the number of molecules of propylene carbonate to weigh a gram than the number of molecules of ethane needed to weigh a gram. Based on the mass MIR (g O 3 /g VOC) value for propylene carbonate being equal to or less than that of ethane, EPA is proposing to find that propylene carbonate is “negligibly reactive” and therefore exempt for the regulatory definition of VOC at 40 CFR 51.100(s). EPA is inviting comment on whether the comparison of propylene carbonate to ethane should instead be made on the basis of the molar MIR (g O 3 /mole VOC) value. In that case, the petition to grant propylene carbonate a status of “negligibly reactive” would be denied. B. Dimethyl Carbonate The EPA received a petition from Kowa America Corporation on July 29, 2004 seeking an exemption from the regulatory definition of VOC for dimethyl carbonate. This petition asserted that dimethyl carbonate
(DMC)is less photochemically reactive than ethane and asked for the exemption on that basis. Dimethyl carbonate (CAS registry number 616-38-6) may be used as a solvent in paints and coatings. The petitioner anticipated that it might be used in waterborne paints and adhesives because it is partially water soluble. It is also used as a methylation and carbonylation agent in organic synthesis. It can be used as a fuel additive. In support of its petition, the petitioner presented articles which give the k OH and MIR values for the compound shown in Table 1. These articles have been placed in the docket. As shown in Table 1, DMC has a greater k OH value than ethane, which indicates that DMC will likely initially react more quickly in the atmosphere. However, the MIR values for DMC calculated on either a mass or mole basis are less than that of ethane, which indicates lower reactivity overall. Based on these data, EPA proposes to find that DMC is “negligible reactivity” and therefore exempt from the regulatory definition of VOC at 40 CFR 51.100(s). Because both the mass and molar MIR values of DMC are less than those of ethane, this chemical would meet EPA's exemption criteria under either MIR metric. III. Proposed Action This proposed action is based on EPA's review of the material in Docket ID No. EPA-HQ-OAR-2006-0948. The EPA hereby proposes to amend its definition of VOC at 40 CFR 51.100(s) to exclude propylene carbonate and dimethyl carbonate from the regulatory definition of VOC for use in ozone SIPs and ozone controls for purposes of attaining the ozone national ambient air quality standard. The revised definition will also apply for purposes of any Federal implementation plan for ozone nonattainment areas ( *see e.g.* , 40 CFR 52.741(a)(3)). States are not obligated to exclude from control as a VOC those compounds that EPA has found to be negligibly reactive. However, if this action is made final, States should not include these compounds in their VOC emissions inventories for determining reasonable further progress under the Act (e.g., section 182(b)(1)) and may not take credit for controlling these compounds in their ozone control strategy. Excluding a compound from the regulatory definition of VOC may lead to changes in the amount of the exempt compound used and the types of applications in which the exempt compound is used. Although this proposal has no mandatory reporting requirements, EPA urges States to continue to inventory the emissions of these compounds for use in photochemical modeling. Further, EPA invites comment on methods for tracking the uses and emissions of these two compounds, as well as any more reactive compounds for which these two compounds may substitute. The EPA believes that the proposed exemptions will help to decrease exposures to ground-level ozone by encouraging the use of exempted negligibly reactive compounds in lieu of VOCs and thereby focusing air quality management programs on VOC emissions that contribute most to ozone formation. Although compounds are defined as negligibly reactive solely on the basis of their contribution to ground-level ozone formation, EPA is interested in evaluating whether the proposed exemptions could increase public health risks if these negligibly reactive compounds were toxic themselves. While EPA does not have information to suggest that the proposed exemptions could increase health risks due to possible toxicity of the exempted compounds, we invite the public to submit comments and additional information relevant to this issue. IV. Statutory and Executive Order Reviews 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 because it raises novel legal or policy issues. 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. B. Paperwork Reduction Act This action does not contain any information collection requirements subject to OMB review under the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* It does not impose any recordkeeping or reporting requirement burden. 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 does 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 control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 *et seq.* requires the identification of potentially adverse impacts of Federal regulations upon small business entities. The Act specifically requires the completion of a RFA analysis in those instances where the regulation would impose a substantial impact on a significant number of small entities. Because this rulemaking imposes no adverse economic impacts, an analysis has not been conducted. The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. After considering the economic impacts of this proposed rule on small entities, I have determined that this action will not have a significant economic impact on a substantial number of small entities. This rule will not impose any requirements on small entities. This rule concerns only the definition of VOC and does not directly regulate any entities. The RFA analysis does not consider impacts on entities which the action in question does not regulate. See *Motor & Equipment Manufacturers Ass'n* v. *Nichols,* 142 F. 3d 449, 467 (D.C. Cir. 1998); *United Distribution Cos.* v. *FERC,* 88 F. 3d 1105, 1170 (D.C. Cir. 1996), cert. denied, 520 U.S. 1224 (1997). Pursuant to the provision of 5 U.S.C. 605(b), I hereby certify that the rule will not have an impact on small entities. 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 an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Since this rule is deregulatory in nature and does not impose a mandate upon any source, this rule is not estimated to result in the expenditure by State, local and Tribal governments or the private sector of $100 million in any 1 year. Therefore, the Agency has not prepared a budgetary impact statement or specifically addressed the selection of the least costly, most cost-effective, or least burdensome alternative. Because small governments will not be significantly or uniquely affected by this rule, the Agency is not required to develop a plan with regard to small governments. 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 action addressing the exemption of two chemical compounds from the VOC definition does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action does not impose any new mandates on State or local governments. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA is specifically soliciting comments on this proposed rule from State and local officials. 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. Today's action does not have any direct effects on Indian Tribes. Thus, Executive Order 13175 does not apply to this rule. In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and Tribal governments, EPA invites comments on the proposed rule from Tribal officials. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use 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) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 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 rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations. Executive Order
(EO)12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The proposed rule amendment is deregulatory and does allow relaxation of the control measures on sources. However, this is not expected to lead to increased ozone formation since the compounds being exempted have been determined to have negligible photochemical reactivity. List of Subjects in 40 CFR Part 51 Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: September 25, 2007. Stephen L. Johnson, Administrator. For reasons set forth in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as follows: PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS 1. The authority citation for part 51, subpart F, continues to read as follows: Authority: 42 U.S.C. 7401, 7411, 7412, 7413, 7414, 7470-7479, 7501-7508, 7601, and 7602. § 51.100 [Amended] 2. Section 51.100 is amended at the end of paragraph (s)(1) introductory text by removing the words “and perfluorocarbon compounds which fall into these classes:” and adding in their place a semi-colon and the words “; propylene carbonate; dimethyl carbonate; and perfluorocarbon compounds which fall into these classes:”. [FR Doc. E7-19324 Filed 9-28-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [Docket No. EPA-R02-OAR-2007-0913; FRL-8474-9] Approval and Promulgation of Implementation Plans; New York: Clean Air Interstate Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a revision to the New York State Implementation Plan
(SIP)that addresses the requirements of EPA's Clean Air Interstate Rule (CAIR), promulgated on May 12, 2005 and subsequently revised on April 28, 2006, and December 13, 2006. EPA is proposing to determine that the SIP revision fully implements the CAIR requirements for New York. EPA will also withdraw the CAIR Federal Implementation Plans (CAIR FIPs) concerning sulfur dioxide (SO <sup>2</sup> ), nitrogen oxides (NO <sup>X</sup> ) annual, and NO <sup>X</sup> ozone season emissions for New York pending final approval of New York's SIP revision. The CAIR FIPs for all states in the CAIR region were promulgated on April 28, 2006 and subsequently revised on December 13, 2006. The SIP revision that EPA is proposing to approve will also satisfy New York's 110(a)(2)(D)(i) obligations to submit a SIP revision that contains adequate provisions to prohibit air emissions from adversely affecting another state's air quality through interstate transport. CAIR requires states to reduce emissions of SO <sup>2</sup> and NO <sup>X</sup> that significantly contribute to and interfere with the maintenance of the national ambient air quality standards for fine particulates and/or ozone in any downwind state. CAIR establishes state budgets for SO <sup>2</sup> and NO <sup>X</sup> and requires states, which EPA has concluded contribute to nonattainment in downwind states, to submit SIP revisions that implement these budgets. States have the flexibility to choose the control measures to adopt to achieve the budgets, including participating in the EPA-administered cap-and-trade programs. In the SIP revision that EPA is proposing to approve, New York would meet CAIR requirements by participating in the EPA-administered cap-and-trade programs addressing SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. DATES: Comments must be received on or before October 31, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-OAR-2007-0913, by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail:* *Werner.Raymond@epa.gov.* 3. *Fax:*
(212)637-3901. 4. *Mail:* EPA-R02-OAR-2007-0913, Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. 5. *Hand Delivery or Courier:* Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R02-OAR-2007-0913. EPA's policy is that all comments received will be included in the public docket without change and may be made available on-line at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through *http://www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption and should be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions concerning today's proposal, please contact Kenneth Fradkin, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. The telephone number is
(212)637-3702. Mr. Fradkin can also be reached via electronic mail at *Fradkin.kenneth@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Proposing To Take? II. What Is the Regulatory History of CAIR and the CAIR FIPs? III. What Are the General Requirements of CAIR and the CAIR FIPs? IV. What Are the Types of CAIR SIP Submittals? V. Analysis of New York's CAIR SIP Submittal A. State Budgets for Allowance Allocations B. CAIR Cap-and-Trade Programs C. Applicability Provisions for Non-EGU NO <sup>X</sup> SIP Call Sources D. NO <sup>X</sup> Allowance Allocations E. Allocation of NO <sup>X</sup> Allowances From Compliance Supplement Pool F. Individual Opt-In Units G. Satisfying Section 110(a)(2)(D)(i) of the Clean Air Act H. What Other Clarifications Should New York Make in Its Program? VI. Proposed Actions VII. Statutory and Executive Order Reviews I. What Action Is EPA Proposing To Take? EPA is proposing to approve a revision to New York's SIP that was adopted on August 28, 2007 and submitted on September 17, 2007. New York's revision addresses the Clean Air Interstate Rule
(CAIR)and obligations under 110(a)(2)(D)(i) for the 8-hour ozone and fine particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS). New York had submitted an earlier version of the revision on March 30, 2007. EPA is proposing to approve the September revision only since it contains the version of New York's CAIR rulemaking that was adopted by New York's Environmental Control Board
(ECB)on August 28, 2007. In its SIP revision, New York would meet CAIR requirements by requiring certain electric generating units
(EGUs)to participate in the EPA-administered State CAIR cap-and-trade programs addressing SO 2 , NO X annual, and NO X ozone season emissions. EPA is proposing to determine that the SIP, as revised, will meet the applicable requirements of CAIR. Any final action on the SIP will be taken by the Regional Administrator for Region 2. In the event the proposed approval is finalized, the Administrator of EPA will also issue a final rule to withdraw the FIPs concerning SO 2 , NO X annual, and NO X ozone season emissions for New York. This action will delete and reserve 40 CFR 52.1684 and 40 CFR 52.1685, relating to the CAIR FIP obligations for New York. The withdrawal of the CAIR FIPs for New York is a conforming amendment that must be made once the SIP is approved because EPA's authority to issue the FIPs was premised on a deficiency in the SIP for New York. Once the SIP is fully approved, EPA no longer has authority for the FIPs. Thus, EPA will not have the option of maintaining the FIPs following the full SIP approval. Accordingly, EPA does not intend to offer an opportunity for a public hearing or an additional opportunity for written public comment on the withdrawal of the FIPs. In addition, EPA is also proposing approval of a revision to New York's SIP to address the requirements of section 110(a)(2)(D)(i) of the Clean Air Act (CAA). This section of the Act requires each state to submit a SIP that prohibits emissions that could adversely affect another state. The SIP must prevent sources in the state from emitting pollutants in amounts that will:
(1)Contribute significantly to downwind nonattainment of the NAAQS,
(2)interfere with maintenance of the NAAQS,
(3)interfere with provisions to prevent significant deterioration of air quality, and
(4)interfere with efforts to protect visibility. II. What Is the Regulatory History of the CAIR and the CAIR FIPs? The Clean Air Interstate Rule
(CAIR)was published by EPA on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 states and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the national ambient air quality standards (NAAQS) for fine particles (PM 2.5 ) and/or 8-hour ozone in downwind states in the eastern part of the country. As a result, EPA required those upwind states to revise their SIPs to include control measures that reduce emissions of SO 2 , which is a precursor to PM 2.5 formation, and/or NO X , which is a precursor to both ozone and PM 2.5 formation. For jurisdictions that contribute significantly to downwind PM 2.5 nonattainment, CAIR sets annual state-wide emission reduction requirements (i.e., budgets) for SO 2 and annual state-wide emission reduction requirements for NO X . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets state-wide emission reduction requirements for NO X for the ozone season (May 1st to September 30th). Under CAIR, states may implement these reduction requirements by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures. CAIR provides an explanation of what states must include in SIPs to address the requirements of section 110(a)(2)(D) of the CAA with regard to interstate transport with respect to the 8-hour ozone and PM 2.5 NAAQS. EPA made national findings, effective on May 25, 2005, that the states had failed to submit SIPs meeting the requirements of section 110(a)(2)(D). The SIPs were due in July 2000, three years after the promulgation of the 8-hour ozone and PM 2.5 NAAQS. These findings started a 2-year clock for EPA to promulgate a Federal Implementation Plan
(FIP)to address the requirements of section 110(a)(2)(D). Under CAA section 110(c)(1), EPA may issue a FIP anytime after such findings are made and must do so within two years unless a SIP revision correcting the deficiency is approved by EPA before the FIP is promulgated. On April 28, 2006, EPA promulgated FIPs for all states covered by CAIR in order to ensure the emissions reductions required by CAIR are achieved on schedule. Each CAIR state is subject to the FIPs until the state fully adopts, and EPA approves, a SIP revision meeting the requirements of CAIR. The CAIR FIPs require EGUs to participate in the EPA-administered CAIR SO 2 , NO X annual, and NO X ozone season trading programs, as appropriate. The CAIR FIP SO 2 , NO X annual, and NO X ozone season trading programs impose essentially the same requirements as, and are integrated with, the respective CAIR SIP trading programs. The integration of the FIP and SIP trading programs means that these trading programs will work together to create effectively a single trading program for each regulated pollutant (SO 2 , NO X annual, and NO X ozone season) in all states covered by the CAIR FIP or SIP trading program for that pollutant. The CAIR FIPs also allow states to submit abbreviated SIP revisions that, if approved by EPA, will automatically replace or supplement certain CAIR FIP provisions (e.g., the methodology for allocating NO X allowances to sources in the state), while the CAIR FIP remains in place for all other provisions. On April 28, 2006, EPA published two additional CAIR-related final rules that added the States of Delaware and New Jersey to the list of states subject to CAIR for PM 2.5 , and without making any substantive changes to the CAIR requirements, announced EPA's final decisions on reconsideration of five issues, including certain technical, allocation, compliance, cost-effectiveness, and timing issues, as well as a decision specific to Florida. III. What Are the General Requirements of CAIR and the CAIR FIPs? CAIR established state-wide emission budgets for SO 2 and NO X and is to be implemented in two phases. The first phase of NO X reductions starts in 2009 and continues through 2014, while the first phase of SO 2 reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO X and SO 2 starts in 2015 and continues thereafter. CAIR requires states to implement the budgets by either:
(1)Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or
(2)adopting other control measures of the state's choosing and demonstrating that such control measures will result in compliance with the applicable state SO 2 and NO X budgets. The May 12, 2005 and April 28, 2006 CAIR rules provide model rules that states must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs. With two exceptions, only states that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for states that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for states that include all non-EGUs from their NO X SIP Call trading programs in their CAIR NO X ozone season trading programs. IV. What Are the Types of CAIR SIP Submittals? States have the flexibility to choose the type of control measures they will use to meet the requirements of CAIR. EPA anticipates that most states will choose to meet the CAIR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAIR cap-and-trade programs. For such states, EPA has provided two approaches for submitting and obtaining approval for CAIR SIP revisions. States may submit full SIP revisions that adopt the model CAIR cap-and-trade rules. If approved, these SIP revisions will fully replace the CAIR FIPs. Alternatively, states may submit abbreviated SIP revisions. These SIP revisions will not replace the CAIR FIPs; however, the CAIR FIPs provide that, when approved, the provisions in these abbreviated SIP revisions will be used instead of or in conjunction with, as appropriate, the corresponding provisions of the CAIR FIPs (e.g., the NO X allowance allocation methodology). A state submitting a full SIP revision may either adopt regulations that are substantively identical to the model rules or incorporate by reference the model rules. CAIR provides that states may only make limited changes to the model rules if the states want to participate in the EPA-administered trading programs. A full SIP revision may change the model rules only by altering their applicability and allowance allocation provisions to: 1. Include NO X SIP Call trading sources that are not EGUs under CAIR in the CAIR NO X ozone season trading program; 2. Provide for state allocation of NO X annual or ozone season allowances using a methodology chosen by the State; 3. Provide for state allocation of NO X annual allowances from the compliance supplement pool
(CSP)using the state's choice of allowed, alternative methodologies; or 4. Allow units that are not otherwise CAIR units to opt individually into the CAIR SO 2 , NO X annual, or NO X ozone season trading programs under the opt-in provisions in the model rules. An approved CAIR full SIP revision addressing EGUs' SO 2 , NO X annual, or NO X ozone season emissions will replace the CAIR FIP for that state for the respective EGU emissions. V. Analysis of New York's CAIR SIP Submittal New York has submitted regulations in its SIP revision, Title 6 of the New York Code of Rules and Regulations (NYCRR), Parts 243, 244, and 245, to implement the CAIR Cap-and-Trade Programs in New York. The SIP revision also addresses outstanding obligations under 110(a)(2)(D)(i). The acceptability of New York's submittal is discussed below. A. State Budgets for Allowance Allocations The CAIR NO <sup>X</sup> annual and ozone season budgets were developed from historical heat input data for EGUs. Using these data, EPA calculated annual and ozone season regional heat input values, which were multiplied by 0.15 lb/mmBtu, for phase 1, and 0.125 lb/mmBtu, for phase 2, to obtain regional NO <sup>X</sup> budgets for 2009-2014 and for 2015 and thereafter, respectively. EPA derived the State NO <sup>X</sup> annual and ozone season budgets from the regional budgets using state heat input data adjusted by fuel factors. The CAIR State SO <sup>2</sup> budgets were derived by discounting the tonnage of emissions authorized by annual allowance allocations under the Acid Rain Program under title IV of the CAA. Under CAIR, each allowance allocated in the Acid Rain Program for the years in phase 1 of CAIR (2010 through 2014) authorizes 0.5 ton of SO <sup>2</sup> emissions in the CAIR trading program, and each Acid Rain Program allowance allocated for the years in phase 2 of CAIR (2015 and thereafter) authorizes 0.35 ton of SO <sup>2</sup> emissions in the CAIR trading program. In today's action, EPA is proposing approval of New York's SIP revision that adopts the budgets established for the State in CAIR. The Statewide CAIR NO <sup>X</sup> ozone season budget is 20,632 tons of NO <sup>X</sup> ozone season emissions for phase 1 (2009-2014) and 17,193 tons for phase 2 (2015 and thereafter), plus an additional 10,459 tons of NO <sup>X</sup> ozone season emissions for both phases 1 and 2 to account for NO <sup>X</sup> ozone season emissions from “non-EGU” units from the New York NO <sup>X</sup> SIP Call trading program (see V.B. below). The total NO <sup>X</sup> ozone season budget is therefore 31,091 tons of NO <sup>X</sup> ozone season emissions for CAIR phase 1 and 27,652 tons for CAIR phase 2. The Statewide CAIR NO <sup>X</sup> annual budget is 45,617 for CAIR phase 1 and 38,014 for CAIR phase 2 for NO <sup>X</sup> annual emissions. The Statewide CAIR SO <sup>2</sup> trading program budget is 135,139 for phase 1 (2010-2014) and 94,597 for phase 2 (2015 and thereafter) tons for SO <sup>2</sup> emissions. New York's SIP revision sets these budgets as the total amount of allowances available for allocation for each year under the EPA-administered cap-and-trade programs. B. CAIR Cap-and-Trade Programs The CAIR NO <sup>X</sup> annual and ozone-season model trading rules both largely mirror the structure of the NO <sup>X</sup> SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO <sup>X</sup> annual and ozone-season model rules are similar, there are some differences. For example, the NO <sup>X</sup> annual model rule (but not the NO <sup>X</sup> ozone season model rule) provides for a Compliance Supplement Pool (CSP), which is discussed below and under which allowances may be awarded for early reductions of NO <sup>X</sup> annual emissions. As a further example, the NO <sup>X</sup> ozone season model rule reflects the fact that the CAIR NO <sup>X</sup> ozone season trading program replaces the NO <sup>X</sup> SIP Call trading program after the 2008 ozone season and is coordinated with the NO <sup>X</sup> SIP Call program. The NO <sup>X</sup> ozone season model rule provides incentives for early emissions reductions by allowing banked, pre-2009 NO <sup>X</sup> SIP Call allowances to be used for compliance in the CAIR NO <sup>X</sup> ozone-season trading program. In addition, states have the option of continuing to meet their NO <sup>X</sup> SIP Call requirement by participating in the CAIR NO <sup>X</sup> ozone season trading program and including all their NO <sup>X</sup> SIP Call trading sources in that program. The provisions of the CAIR SO <sup>2</sup> model rule are also similar to the provisions of the NO <sup>X</sup> annual and ozone season model rules. However, the SO <sup>2</sup> model rule is coordinated with the ongoing Acid Rain SO <sup>2</sup> cap-and-trade program under CAA title IV. As discussed in Section V.A. above, the SO <sup>2</sup> model rule uses the title IV allowances for compliance, with each allowance allocated for 2010-2014 authorizing only 0.50 ton of emissions and each allowance allocated for 2015 and thereafter authorizing only 0.35 ton of emissions. Banked title IV allowances allocated for years before 2010 can be used at any time in the CAIR SO <sup>2</sup> cap-and-trade program, with each such allowance authorizing 1 ton of emissions. Title IV allowances are to be freely transferable among sources covered by the Acid Rain Program and sources covered by the CAIR SO <sup>2</sup> cap-and-trade program. In the SIP revision, New York chooses to implement its CAIR budgets by requiring EGUs to participate in EPA-administered cap-and-trade programs for SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. New York has adopted a full SIP revision that adopts, with certain allowed changes discussed below, the CAIR model cap-and-trade rules for SO2, NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. C. Applicability Provisions for Non-EGU NO <sup>X</sup> SIP Call Sources In general, the CAIR model trading rules apply to any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale. States have the option of bringing in, for the CAIR NO <sup>X</sup> ozone season program only, those units in the State's NO <sup>X</sup> SIP Call trading program that are not EGUs as defined under CAIR. EPA advises states exercising this option to add the applicability provisions in the State's NO <sup>X</sup> SIP Call trading rule for non-EGUs to the applicability provisions in 40 CFR 96.304 of EPA's model trading rule. Under this option, the CAIR NO <sup>X</sup> ozone season program must cover all large industrial boilers and combustion turbines, as well as any small EGUs (i.e. units serving a generator with a nameplate capacity of 25 MWe or less) that the state currently requires to be in the NO <sup>X</sup> SIP Call trading program. New York has chosen to expand the applicability provisions of the CAIR NO <sup>X</sup> ozone season trading program to include all non-EGUs currently in the State's NO <sup>X</sup> SIP Call trading program. D. NO <sup>X</sup> Allowance Allocations Under the NO <sup>X</sup> allowance allocation methodology in the CAIR model trading rules and in the CAIR FIP, NO <sup>X</sup> annual and ozone season allowances are allocated to units that have operated for five years, based on heat input data from a three-year period that are adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR FIPs also provide a new unit set-aside from which units without five years of operation are allocated allowances based on the units' prior year emissions. States may establish in their SIP submissions a different NO <sup>X</sup> allowance allocation methodology to allocate allowances to sources in the states if certain requirements are met. Primarily, the timing of the submission of NO <sup>X</sup> annual and NO <sup>X</sup> ozone season CAIR units' allocations to the Administrator for recordation and the total amount of NO <sup>X</sup> annual and NO <sup>X</sup> ozone season allowances allocated for each control period must be consistent with the applicable requirements in 40 CFR 51.123(o) and (aa). In adopting alternative NO <sup>X</sup> allowance allocation methodologies, states have flexibility with regard to: 1. The cost to recipients of the allowances, which may be distributed for free or auctioned; 2. The frequency of allocations; 3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and 4. The use of allowance set-asides and, if used, their size. New York has chosen to replace the provisions of the CAIR NO <sup>X</sup> annual and ozone-season model trading rules concerning the allocation of NO <sup>X</sup> annual and ozone-season allowances with its own methodology. New York's allocation methodology is based on the highest heat input (EGUs and non-EGUs) experienced by a CAIR unit for any single control period among the three most recent control periods, for which data is available. The number of allocations to be allocated to each unit will not exceed the unit's control period potential to emit (CPPTE), which is defined as the maximum capacity of a CAIR NO <sup>X</sup> unit to emit NO <sup>X</sup> under its physical and operational design during a control period. All fuel types are weighed evenly without adjustment of heat input data for fuel type. New York is establishing new CAIR NO <sup>X</sup> Ozone Season and CAIR NO <sup>X</sup> annual set-aside accounts for units commencing operation on/or after May 1, 2003 for CAIR NO <sup>X</sup> Ozone Season units, and on/or after January 1, 2003 for CAIR NO <sup>X</sup> annual units. The new unit set-aside accounts will consist of five percent of the statewide CAIR NO <sup>X</sup> ozone season and NO <sup>X</sup> annual budgets for both phases of the CAIR program. Therefore, the new unit set-aside includes 1,554 CAIR NO <sup>X</sup> ozone-season allowances during phase 1, and 1,382 CAIR NO <sup>X</sup> ozone-season allowances during phase 2; and 2,280 CAIR NO <sup>X</sup> annual allowances during phase 1 and 1,900 CAIR NO <sup>X</sup> annual allowances during phase 2 . If the number of requests for allowances exceeds the number of allowances in the new set-aside account, New York will reserve allowances in the order in which approvable requests were submitted. Requests will be considered simultaneous if received in the same calendar quarter. Should approvable requests in excess of the set-aside be submitted in the same quarter, New York will reserve allowances for those units in an amount proportional to the allowances requested. Any unused allowances from the set-aside will flow back to existing sources as additional allocations in proportion to their original allocation. New York will distribute all allowances at no cost with the exception of allowances held in the Energy Efficiency and Renewable Energy Technology (EERET) Account. New York is allocating ten percent of emission allowances to the Energy Efficiency and Renewable Energy Technology (EERET) Account, which will be administered by the New York State Energy Research and Development Authority (NYSERDA). Allowances will be sold or distributed in order to provide funds to be used to support programs that encourage and foster energy efficiency measures and renewable energy technologies and cover reasonable costs associated with the administration and evaluation of these programs by NYSERDA. Any EERET allowances that are not sold or distributed by NYSERDA within 12 months of the initial allocation to the EERET account, will flow back to the New York Department of Environmental Conservation and be redistributed to existing CAIR units. E. Allocation of NO <sup>X</sup> Allowances From Compliance Supplement Pool The CAIR establishes a compliance supplement pool
(CSP)to provide an incentive for early reductions in NO <sup>X</sup> annual emissions. The CSP consists of 200,000 CAIR NO <sup>X</sup> annual allowances of vintage 2009 for the entire CAIR region, and a state's share of the CSP is based upon the projected magnitude of the emission reductions required by CAIR in that state. States may distribute CSP allowances, one allowance for each ton of early reduction, to sources that make NO <sup>X</sup> reductions during 2007 or 2008 beyond what is required by any applicable state or Federal emission limitation. States also may distribute CSP allowances based upon a demonstration of need for an extension of the 2009 deadline for implementing emission controls. The CAIR annual NO <sup>X</sup> model trading rule establishes specific methodologies for allocations of CSP allowances. States may choose an allowed, alternative CSP allocation methodology to be used to allocate CSP allowances to sources in the states. As a result of emission reductions already achieved in New York, the state will not receive any CSP allowances. Therefore, New York will not modify the provisions of the CAIR NO <sup>X</sup> annual model trading rule concerning the allocation of allowances from the CSP. F. Individual Opt-In Units The opt-in provisions of the CAIR SIP model trading rules allow certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet monitoring, recordkeeping, and recording requirements of 40 CFR part 75. Owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015. States have several options concerning the opt-in provisions. States may adopt the CAIR opt-in provisions entirely or may adopt them but exclude one of the methodologies for allocating allowances. States may also decide to adopt none of the opt-in provisions. New York has chosen to allow non-EGUs to opt into the CAIR NO <sup>X</sup> annual, CAIR NO <sup>X</sup> ozone season, and CAIR SO <sup>2</sup> trading programs. New York's program allows for both opt-in allocation methods as indicated in the model rule for opt-in units in general and for opt-in units that the owners and operators intend to repower before January 1, 2015. G. Satisfying Section 110(a)(2)(D)(i) of the Clean Air Act Section 110(a)(2)(D)(i) of the CAA requires each state to submit a SIP that prohibits emissions that could adversely affect another state. The SIP must prevent sources in the state from emitting pollutants in amounts that will:
(1)Contribute significantly to downwind nonattainment of the NAAQS,
(2)interfere with maintenance of the NAAQS,
(3)interfere with provisions to prevent significant deterioration of air quality, and
(4)interfere with efforts to protect visibility. EPA issued guidance on August 15, 2006, relating to SIP submissions to meet the requirements of section 110(a)(2)(D)(i). As discussed below, New York's SIP revision is consistent with the guidance and the statute. New York addresses the first two of these four elements by complying with the requirements of CAIR. New York satisfies these requirements either by relying on the existing CAIR FIPs, or through approval of this SIP revision. The third element New York addresses is prevention of significant deterioration (PSD). In accordance with the guidance issued on August 15, 2006, states may continue to rely on their existing Nonattainment New Source Review
(NNSR)and PSD permitting programs to prevent significant deterioration of air quality within their own boundaries and in adjacent states. New York has met the obligation by confirming that the federal PSD and state NNSR permitting programs remain in effect and continue to apply for the State's major stationary sources. In addition, New York is currently in the rulemaking process for part 231, New Source Review for New and Modified Facilities, which will be submitted to EPA as expeditiously as possible for approval and inclusion in the SIP. Part 231 will include 8-hour ozone and PM <sup>2.5</sup> PSD and NNSR permitting requirements for major sources in the state. Part 231 will also use PM <sup>10</sup> as a surrogate for PM <sup>2.5</sup> in the PSD and NNSR programs. With respect to the fourth element, visibility protection, and consistent with EPA's August 15, 2006 guidance, it is not possible at this time for New York to accurately determine whether there is interference with measures in another state's SIP designed to protect visibility. New York will need to address the visibility protection requirements once the regional haze SIP is completed and submitted to EPA in December of 2007. H. What Other Clarifications Should New York Make in Its Program? New York should incorporate the definition of “fossil-fuel fired” under the NO <sup>X</sup> SIP Call into its CAIR NO <sup>X</sup> ozone season regulation. This revision should specify that the definition applies only for purposes of determining applicability for units that are not CAIR NO <sup>X</sup> Ozone Season units under the applicability criteria in 40 CFR 96.304. In the final New York CAIR ozone season regulation, the definition for “Fossil fuel fired” contained in 243-1.2(43)(ii), does not include this cross-reference to the applicability in 243-1.4(a)(3). New York agrees with EPA's interpretation of the definition of “fossil fuel fired.” As indicated in the September 17, 2007 SIP revision, New York has committed to revise the definition of “Fossil fuel fired” in its NO <sup>X</sup> CAIR ozone season regulation as discussed above. New York has committed to modify the definition simultaneous with revision of its CAIR regulations to address EPA's proposed rulemaking revising the cogeneration unit definitions. New York will revise the definition of “fossil fuel fired” no later than the effective date of the NO <sup>X</sup> CAIR program. VI. Proposed Actions EPA is proposing to approve New York's full CAIR SIP revision submitted on September 17, 2007. Under this SIP revision, New York is choosing to participate in the EPA-administered cap-and-trade programs for SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. The SIP revision meets the applicable requirements in 40 CFR 51.123(o) and (aa), with regard to NO <sup>X</sup> annual and NO <sup>X</sup> ozone season emissions, and 40 CFR 51.124(o), with regard to SO <sup>2</sup> emissions. EPA is proposing to determine that the SIP as revised will meet the requirements of CAIR. If EPA approves New York's SIP revision, the Administrator of EPA will also issue, without providing an opportunity for a public hearing or an additional opportunity for written public comment, a final rule to withdraw the CAIR FIPs concerning SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions for New York. This action will delete and reserve 40 CFR 52.1684 and 40 CFR 52.1685. EPA is also proposing that this revision adequately addresses the required elements of 110(a)(2)(D)(i) with the exception of the visibility protection requirement. This requirement will be re-evaluated after the regional haze SIP is completed and submitted to EPA in December 2007. VII. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve state law as meeting Federal requirements and would impose no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule would 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 action proposes to approve pre-existing requirements under state law and would 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 proposal also does not have tribal implications because it would 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 proposed action also does not have Federalism implications because it would 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 proposes to approve a state rule implementing a Federal standard and will result, as a consequence of that approval, in the Administrator's withdrawal of the CAIR FIP. It does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed 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 would approve 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. 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 proposed rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. Authority: 42 U.S.C. 7401 *et seq.* Dated: September 21, 2007. Alan J. Steinberg, Regional Administrator, Region 2. [FR Doc. E7-19346 Filed 9-28-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention 42 CFR Part 71 RIN 0920-AA03 Foreign Quarantine Regulations, Proposed Revision of HHS/CDC Animal-Importation Regulations AGENCY: Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS). ACTION: Advance notice of proposed rulemaking; extension of public comment period. SUMMARY: On July 31, 2007, CDC published an advanced notice of proposed rulemaking (ANPRM), “Foreign Quarantine regulations, Proposed Revision of HHS/CDC Animal-Importation Regulations,” (72 FR 41676) to begin the process of revising HHS/CDC Animal Importation Regulations that cover dogs and cats (42 CFR 71.51), and to consider extending these regulations to cover domesticated ferrets. The ANPRM will also address the importation of African rodents (42 CFR 71.56) into the United States. HHS/CDC is also considering the need for additional regulations to prevent the introduction of zoonotic diseases into the United States. CDC provided a 60-day pubic comment period, with written comments to be received on or before October 1, 2007. CC has received requests asking for an extension of the comment period. In consideration of these requests, CDC is extending the comment period an additional 60 days, with a new closing date of December 1, 2007. DATES: Written comments on the advance notice of proposed revision of HHS/CDC Animal Importation Regulations must be submitted on or before December 1, 2007. Please refer to SUPPLEMENTARY INFORMATION for additional information. ADDRESSES: Written comments may submitted to the following address: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Division of Global Migration and Quarantine, ATTN: Animal Importation Regulations, 1600 Clifton Road, NE., (E03), Atlanta, GA 30333. Comments will be available for public inspection Monday through Friday, except for legal holidays, from 9 a.m. until 5 p.m. at 1600 Clifton Road, NE., Atlanta, GA 30333. Please call ahead to 1-866-694-4867 and ask for a representative in the Division of Global Migration and Quarantine to schedule your visit. Written comments may also be submitted electronically via the Internet at *http://www.regulations.gov* or via e-mail to *animalimportcomments@cdc.gov.* Electronic comments may be viewed at *http://www.cdc.gov/publiccomments/.* An electronic copy of the rule can be found at: *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Robert Mullan, M.D., Centers for Disease Control and Prevention, Division of Global Migration and Quarantine,
(404)639-4537. SUPPLEMENTARY INFORMATION: On July 31, 2007, CDC published an advanced notice of proposed rulemaking (ANPRM), “Foreign Quarantine Regulations, Proposed Revision of HHS/CDC Animal-Importation Regulations” (72 FR 41676). In that **Federal Register** Notice, CDC provided a 60-day public comment period. Written comments were to be received on or before October 1, 2007. Since the Notice was published, CDC has received requests asking for an extension of the public comment period beyond the 60 days originally provided. These requests have been made by national groups that represent organizations that will be affected by the proposed rule. In consideration of these concerns, CDC is extending the comment period by 60 days (until December 1, 2007) to give all interested organizations and persons the opportunity to comment fully. Commenters should be aware that CDC's general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet as they are received and without change, including any personal identifiers or contact information. CDC has posted the ANPRM and related materials on its Web site at *http://www.cdc.gov/ncidod.dq.* Dated: September 20, 2007. Michael O. Leavitt, Secretary. [FR Doc. 07-4852 Filed 9-27-07; 12:07 pm]
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  • 50 CFR 648
  • 50 CFR 660
  • 50 CFR 660.409(b)(1)(i)
  • 50 CFR 660.411
  • 50 CFR 660.409
  • 50 CFR 660.409(b)(1)(I)
  • Pub. L. 91-575
  • 83 Stat. 1509
  • 18 CFR 806
  • 21 CFR 1314
  • 21 USC 801-971
  • Pub. L. 109-177
  • Pub. L. 108-447
  • Pub. L. 102-395
  • 5 USC 601-612
  • 40 CFR 51
  • 40 CFR 2
  • EO 12848
  • 40 CFR 9
  • 142 F.3d 449
  • 88 F.3d 1105
  • 520 U.S. 1224
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 40 CFR 52
  • 40 CFR 96
  • 40 CFR 96.304
  • 40 CFR 75
  • 42 CFR 71
  • 42 CFR 71.51
  • 42 CFR 71.56
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U.S.C.§ 1801
U.S.C.§ 553
C.F.R.§ 806.22
C.F.R.§ 806.4
C.F.R.§ 806.3
Stat.Public Law 99–468
U.S.C.§ 886a
U.S.C.§ 1001
F. App'x142 F.3d 449
F. App'x88 F.3d 1105
SCOTUS520 U.S. 1224
Cites 57 · showing 12Cited by 0 across 0 sources
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