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Code · REGISTER · 2007-10-05 · Coast Guard, DHS · Rules and Regulations

Rules and Regulations. Temporary final rule

35,838 words·~163 min read·/register/2007/10/05/07-4955

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

BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [COTP LA-LB 07-004] RIN 1625-AA00 Safety Zone; Queensway Bay, Long Beach, CA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone in the Long Beach Harbor to encompass the waters between Queensway Bay to Island White at Long Beach harbor for the Annual Los Angeles and Long Beach Tug Boat Race. This safety zone is needed to prevent vessels from transiting the area during the race in order to protect vessels and personnel from potential damage and injury.
Entry into this safety zone will be prohibited unless specifically authorized by the Captain of the Port, Los Angeles-Long Beach, or his on-scene representative. DATES: This rule is effective from 5 p.m. to 7 p.m. on September 27, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket COTP LA-LB 07-004 and are available for inspection or copying at Sector Los Angeles—Long Beach, 1001 S. Seaside Ave, San Pedro, CA 90731 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Peter Gooding, Chief of the Waterways Management Division at
(310)732-2020. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing a NPRM, which would incorporate a comment period before a final rule could be issued, and delaying the rule's effective date is contrary to public safety because immediate action is necessary to protect the public and waters of the United States. Under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective fewer than 30 days after publication in the **Federal Register** . Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. This temporary safety zone should have minimal negative impact on the public and navigation because it will be enforced for only a two hour period on one day. In addition, the area restricted by the safety zone is minimal, allowing vessels to transit around the safety zone to pass. Background and Purpose On September 27, 2007, the Annual Port of Los Angeles and Long Beach Tug Boat Races will be held in the vicinity of Queensway Bay, Echo anchorages, and to extend around Island White. The Captain of the Port is establishing a safety zone to prevent vessels from transiting the area and to protect vessels and personnel from potential damage and injury resulting from the race. Discussion of Rule This safety zone includes the waters of the Long Beach Harbor within the boundaries defined by a line drawn from a point located at 33°45′11″ N, 118°11′14″ W; then south to a point located at 33°44′40″ N, 118°11′00″ W; then northeast to a point located at 33°45′03″ N, 118°09′19″ W; then north to a point located at 33°45′19″ N, 118°09′28″ W; then west back toward the starting point to 33°45′11″ N, 118°11′14″ W [NAD 1983]. Vessels are excluded from the area encompassed by this safety zone from 5 p.m. to 7 p.m. on September 27, 2007. Persons and vessels are prohibited from entering into or transiting through this safety zone unless authorized by the Captain of the Port, or his on-scene representative. By prohibiting all vessel traffic from entering the waters surrounding this event, the safety of the race personnel and the public will be enhanced. U.S. Coast Guard personnel will enforce this safety zone. The Captain of the Port may, in his discretion grant waivers or exemptions to this rule, either on a case-by-case basis or categorically to a particular class of vessel that otherwise is subject to adequate control measures. The Coast Guard will issue a Broadcast Notice to Mariners to further ensure the local boating traffic is aware of the safety zone and its geographical boundaries. Vessels or persons violating this section will be subject to both criminal and civil penalties. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although the safety zone will restrict boating traffic within the navigable waters of the Long Beach Harbor between Queensway Bay and Island White, the effect of this regulation will not be significant as the safety zone will encompass only a small portion of the waterway and will be short in duration. The entities most likely to be affected are pleasure craft engaged in recreational activities and sightseeing. As such, the Coast Guard expects the economic impact of this rule to be minimal. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the affected portion of the Long Beach Harbor from 5 p.m. to 7 p.m. on September 27, 2007. Although the safety zone will restrict boating traffic within the navigable waters of Long Beach Harbor in the vicinity of Queensway Bay east around Island White, the effect of this regulation will not be significant as the safety zone will encompass only a small portion of the waterway and will be short in duration. The entities most likely to be affected are small commercial and pleasure craft engaged in recreational activities and sightseeing. As such, the Coast Guard expects the economic impact of this rule to be minimal. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zone only encompasses a small portion of the waterway, it is short in duration, vessel traffic can pass safely around the safety zone, and the Captain of the Port may authorize entry into the safety zone, if necessary. Before the enforcement period, we will issue maritime advisories widely available to users of this area. If the event concludes prior to the scheduled termination time, the Captain of the Port will cease enforcement of this safety zone and will announce that fact via Broadcast Notice to Mariners. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Commander Peter Gooding, at Coast Sector Los Angeles—Long Beach, Waterways Management Division, at telephone
(310)732-2020. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226 and 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T11-241 to read as follows: § 165.T11-241 Safety Zone; Queensway Bay Long Beach, California
(a)*Location.* The following area comprises the geographical boundary of a safety zone: All navigable waters of the Pacific Ocean within the boundaries defined by a line drawn from a point located at 33°45′11″ N, 118°11′14″ W; then south to a point located at 33°44′40″ N, 118°11′00″ W; then northeast to a point located at 33°45′03″ N, 118°09′19″ W; then north to a point located at 33°45′19″ N, 118°09′28″ W; then west heading back toward the starting point finishing at 33°45′11″ N, 118°11′14″ W [NAD 1983].
(b)*Regulations.*
(1)In accordance with the general regulations in § 165.23 of this part, entry into, transit through, or anchoring within this safety zone by all vessels is prohibited, unless authorized by the Captain of the Port (COTP), or his on-scene representative.
(2)On-scene representative means any commissioned, warrant, and petty officer of the Coast Guard onboard a Coast Guard, Coast Guard Auxiliary, local, state, or federal law enforcement vessel authorized to act on behalf of the COTP.
(3)Mariners may request permission of the COTP, or his on-scene representative to transit through the safety zone. The COTP or his on-scene representative may be contacted via VHF-FM Channel 16.
(c)*Enforcement.*
(1)All persons and vessels shall comply with the instructions of the COTP or his on-scene representative.
(2)Upon being hailed by the COTP or his on-scene representative by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
(3)The Coast Guard may be assisted in the patrol and enforcement of this safety zone by other federal, state, or local law enforcement as necessary.
(d)*Enforcement period.* This section will be enforced from 5 p.m. to 7 p.m. on September 27, 2007. Dated: September 12, 2007. P.E. Wiedenhoeft, Captain, U.S. Coast Guard, Captain of the Port, Los Angeles—Long Beach. [FR Doc. E7-19675 Filed 10-4-07; 8:45 am] BILLING CODE 4910-15-P POSTAL SERVICE 39 CFR Part 111 New Standards for Mailing Lithium Batteries AGENCY: Postal Service. ACTION: Final rule. SUMMARY: The Postal Service TM is revising the standards for mailing lithium and lithium-ion batteries. The new standards identify all small consumer-type lithium batteries as mailable when properly packaged and labeled. DATES: *Effective Date:* October 5, 2007. FOR FURTHER INFORMATION CONTACT: Bert Olsen, 202-268-7276. SUPPLEMENTARY INFORMATION: Background We published a proposed rule in the **Federal Register** (72 FR 20463, April 25, 2007) to revise the standards for mailing lithium and lithium-ion batteries. The standards published in the proposed rule and adopted in this final rule, are consistent with, yet slightly more restrictive than, Department of Transportation
(DOT)and International Air Transportation Association
(IATA)regulations for transportation of lithium batteries. The new proposed standards provide clearer guidance to mailers and postal employees regarding the mailability of consumer-type lithium batteries than current standards provide. Comments Received We received comments from two trade associations which were generally supportive of the proposed standards. Their comments and our responses follow: 1. *Comment:* Do not limit the weight of a mailpiece containing lithium-ion batteries. Within DOT regulations, the Postal Service agrees not to limit the weight of a mailpiece containing lithium-ion batteries since the proposed rule additionally limits the maximum allowable gram equivalency to 8 grams per battery and the maximum number of batteries per mailpiece to 3. The gram quantity restriction per cell and battery, and the restriction on the number of batteries per mailpiece, ensures compliance with DOT regulations. Therefore, the final rule does not contain a maximum mailpiece weight limit for packages containing lithium-ion batteries. 2. *Comment:* Do not restrict the number of lithium-ion batteries to the number of batteries needed to operate the device. Within DOT regulations, the Postal Service agrees not to limit the number of lithium-ion batteries that can be mailed to the number of batteries needed to operate the device since the proposal already limits the number of batteries per mailpiece to 3. Therefore, the final rule does not restrict the number of lithium-ion batteries to the number needed to operate the device but rather limits the number of lithium-ion batteries per mailpiece to 3. 3. *Comment:* Do not restrict the mailing of primary lithium batteries to those only in their original retail packaging. The Postal Service believes that the requirement to mail primary batteries in the original packaging offers assurance of adequate primary packaging. However, we are changing the final rule to read, “in the originally sealed packaging” regardless of the source of the packaging to allow for originally sealed packaging from sources other than retailers. 4. *Comment:* USPS required labeling: “Surface Mail Only,” in addition to DOT labeling: “Primary Lithium Batteries—Forbidden for Transportation Aboard Passenger Aircraft,” is redundant and will add to the cost of the label. The Postal Service believes labels that read “Surface Mail Only” are known to postal employees and quickly recognized. Therefore, the final rule adopts the standards to require labeling as published in the proposal. 5. *Comment:* USPS should not require package labeling in excess of current DOT requirements. DOT has announced their revised labeling requirements will be effective January 1, 2008. Postal labeling requirements will reflect DOT changes. In addition, the Postal Service believes that requiring labeling of mailpieces containing secondary as well as primary batteries and cells is a cautionary measure that identifies the content of the package. Therefore, the final rule adopts the standards to require labeling as published in the proposal. 6. *Comment:* Mailpieces containing primary lithium batteries should not be limited to 5 pounds. The DOT weight limit is 11 pounds of batteries in a shipping container and the Postal Service should adopt the same requirements. The Postal Service believes it is not practical for postal personnel to discern the aggregate weight of batteries within a mailpiece. We believe that mailpieces containing individual batteries (batteries not packed with or installed in equipment) should not exceed 5 pounds. However, we recognize that when batteries are packed with or contained in devices, the devices themselves could easily account for the majority of the weight of a mailpiece and easily exceed 5 pounds. Therefore, the final rule adopts a 5 pound maximum mailpiece weight limit when primary batteries are not packed with or installed in the devices they operate and an 11 pound mailpiece weight limit when batteries are packed with or installed in the device they operate. 7. *Comment:* Do not prohibit damaged or recalled batteries from being mailed. The Postal Service is not prohibiting the mailing of damaged or recalled batteries, but rather we are requiring that these batteries be mailed only with prior approval from the manager, Mailing Standards. Therefore, the final rule adopts the standard for mailing damaged or recalled batteries as published in the proposed rule. Lithium batteries other than small consumer-type batteries remain nonmailable. We adopt the following amendments to *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1, 111.4. List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Postal Service. Accordingly, 39 CFR part 111 is amended as follows: PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001. 2. Revise the following sections of the *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), as follows: 600 Basic Standards for All Mailing Services 601 Mailability 601.10 Hazardous Materials 10.20 Miscellaneous Hazardous Materials (Hazard Class 9) *[Add new 10.20.5 to read as follows:]* 10.20.5 Primary Lithium (Non-Rechargeable) Cells and Batteries Small consumer-type primary lithium cells or batteries (lithium metal or lithium alloy) like those used to power cameras and flashlights are mailable with the following restrictions. Each cell must contain no more than 1.0 gram
(g)of lithium content per cell. Each battery must contain no more than 2.0 g aggregate lithium content per battery. Additionally, each cell or battery must meet the requirements of each test in the *UN Manual of Tests and Criteria,* Part III, and subsection 38.3 as referenced in DOT's hazardous materials regulation at 49 CFR 171.7. All primary lithium cells and batteries must be mailed within a firmly sealed package separated and cushioned to prevent short circuit, movement, or damage. Except for batteries installed in equipment, they must be in a strong outer package. All outer packages must have a complete delivery and return address. Primary lithium cells and batteries are mailable as follows: a. Via surface transportation when the cells or batteries (not packed with or installed in equipment) are “in the originally sealed packaging.” They are forbidden aboard passenger aircraft. The outside of the package must be marked on the address side “Surface Mail Only, Primary Lithium Batteries—Forbidden for Transportation Aboard Passenger Aircraft.” The mailpiece must not exceed 5 pounds. b. Via surface or air transportation when the cells or batteries are properly packed with or properly installed in the equipment they operate and the mailpiece has no more than the number of batteries needed to operate the device. Cells or batteries properly installed in the device they operate must be protected from damage and short circuit, and the device must be equipped with an effective means of preventing accidental activation. The outside of the package must be marked on the address side “Package Contains Primary Lithium Batteries.” The mailpiece must not exceed 11 pounds. *[Add new 10.20.6 to read as follows:]* 10.20.6 Secondary Lithium-ion (Rechargeable) Cells and Batteries Small consumer-type lithium-ion cells and batteries like those used to power cell phones and laptop computers are mailable with the following restrictions. Each cell must contain no more than 1.5 g of equivalent lithium content per cell. Each battery must contain no more than 8.0 g aggregate quantity of equivalent lithium content per battery. Additionally, each cell or battery must meet the requirements of each test in the *UN Manual of Tests and Criteria* , Part III, and subsection 38.3 as referenced in the DOT's hazardous materials regulation at 49 CFR 171.7. All secondary lithium-ion cells and batteries must be mailed in a firmly sealed package separated and cushioned to prevent short circuit, movement, or damage. Except for batteries installed in equipment, they must be in a strong outer package. All outer packages must have a complete delivery and return address. These cells and batteries are mailable as follows: a. Via surface or air transportation when individual cells or batteries are mailed or when properly packed with or properly installed in the equipment they operate. Cells or batteries properly installed in the device they operate must be protected from damage and short circuit, and the device must be equipped with an effective means of preventing accidental activation. The outside of the package must be marked on the address side “Package Contains Lithium-ion Batteries (no lithium metal).” b. The mailpiece must not contain more than 3 batteries. *[Add new 10.20.7 to read as follows:]* 10.20.7 Damaged or Recalled Batteries Damaged or recalled batteries are prohibited from mailing unless approved by the manager, Mailing Standards. *[Add new Exhibit 10.20.7 as follows:]* Exhibit 10.20.7.—Lithium Battery Mailability Chart Primary lithium batteries (small non-rechargeable consumer-type batteries) Surface transportation Air transportation Mailpiece weight limit International APO/FPO Without the equipment they operate (individual batteries) Mailable Prohibited 5 lb Prohibited. Packed with equipment but not installed in equipment Mailable Mailable 11 lb Mailable. Contained (properly installed) in equipment Mailable Mailable 11 lb Mailable. Note 1: Each primary cell must not contain more than 1g lithium content. Note 2: Each primary battery must not contain more than 2 g lithium content. Secondary lithium-ion batteries (small rechargeable consumer-type batteries) Surface transportation Air transportation Mailpiece battery limit International APO/FPO Without the equipment they operate (individual batteries) Mailable Mailable no more than 3 batteries Mailable. Packed with equipment but not installed in equipment Mailable Mailable no more than 3 batteries Mailable. Contained (properly installed) in equipment Mailable Mailable no more than 3 batteries Mailable. Note 3: Each secondary cell must not contain more than 1.5 g equivalent lithium content. Note 4: Each secondary battery must not contain more than 8 g equivalent lithium content. Note 5: For secondary batteries (lithium-ion) there is a limit of 3 batteries per mailpiece. 601.11 Other Restricted and Nonmailable Matter 11.17 Battery-Powered Devices *[Revise the first sentence in 11.17 to read as follows:]* Cells or batteries properly installed in equipment must be protected from damage and short circuit and equipment or devices containing cells or batteries must include an effective means of preventing accidental activation.* * * Neva R. Watson, Attorney, Legislative. [FR Doc. E7-19051 Filed 10-4-07; 8:45 am] BILLING CODE 7710-12-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9 and 721 [EPA-HQ-OPPT-2005-0036; FRL-8110-5] RIN 2070-AJ19 Mercury Switches in Motor Vehicles; Significant New Use Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is promulgating this significant new use rule
(SNUR)under section 5(a)(2) of the Toxic Substances Control Act
(TSCA)for elemental mercury (CAS No. 7439-97-6) used in certain convenience light switches, anti-lock braking system
(ABS)switches, and active ride control system switches. This action will amend 40 CFR part 721 and require persons who intend to manufacture (defined by statute to include import) or process elemental mercury for a use designated by this rule as a significant new use to notify EPA at least 90 days before commencing the manufacturing or processing of the chemical substance for such significant new use. The required notification will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs. In addition, in order to display the OMB control number for the information collection requirements contained in this final rule, EPA is amending the table of Office of Management and Budget
(OMB)approval numbers for EPA regulations that appears in 40 CFR part 9. DATES: This final rule is effective November 5, 2007. ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPPT-2005-0036. All documents in the docket are listed in the docket index available in regulations.gov. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at *http://www.regulations.gov* , or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. The telephone number of the EPA/DC Public Reading Room is
(202)566-1744, and the telephone number for the OPPT Docket is
(202)566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure. FOR FURTHER INFORMATION CONTACT: *For general information contact* : Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)554-1404; e-mail address: *TSCA-Hotline@epa.gov* . *For technical information contact* : Thomas Groeneveld, National Program Chemicals Division (7404T), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)566-1188; e-mail address: *groeneveld.thomas@epa.gov* . SUPPLEMENTARY INFORMATION: I. Does this Action Apply to Me? You may be potentially affected by this action if you manufacture or process elemental mercury for use in certain motor vehicle convenience light switches, ABS switches, and active ride control system switches. This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Persons who import any chemical substance subject to TSCA must comply with the TSCA section 13 (15 U.S.C. 2612) import certification requirements and corresponding regulations codified at 19 CFR 12.118 to 12.127 and 127.28. Such persons must certify that each shipment of the chemical substance complies with applicable rules and orders under TSCA, including any SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, TSCA section 12(b) (15 U.S.C. 2611(b)) export notification requirements are triggered by publication of a proposed SNUR. Therefore, any persons who export, intend to export, or have exported elemental mercury on or after August 10, 2006, are subject to the export notification provisions of TSCA section 12(b) (see 40 CFR 721.20). Such persons must comply with the export notification requirements in 40 CFR part 707, subpart D. Potentially affected entities may include, but are not limited to: • Manufacturers and processors of motor vehicle electrical switches (NAICS code 335931), e.g., manufacturers and processors of mercury switches in convenience lights, ABS acceleration sensors, and active ride control sensors. • Manufacturers and processors of transportation equipment (NAICS code 336), e.g., manufacturers of motor vehicles and motor vehicle parts containing mercury switches. • Motor vehicle repair and maintenance facilities (NAICS code 8111), e.g., motor vehicle mechanics who replace or install new elemental mercury switches as part of vehicle repair and maintenance. • Motor vehicle part
(used)wholesalers (NAICS code 4211), e.g., motor vehicle dismantlers who dismantle motor vehicles and sell used parts. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 721.5 for SNUR-related obligations. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT . II. Background A. What Action is the Agency Taking? EPA proposed this SNUR for elemental mercury used in certain convenience light switches, ABS switches, and active ride control system switches on July 11, 2006 (71 FR 39035) (FRL-7733-9). EPA's responses to public comments received on the proposed rule are in Unit III.D. Please consult the July 11, 2006 **Federal Register** document for further background information for this final rule. This SNUR will require persons to notify EPA at least 90 days before commencing the manufacture, import, or processing of elemental mercury for the uses described in Unit III.B. and 40 CFR 721.10068(b)(2) of the regulatory text for this final rule (including use in certain convenience light switches, ABS switches, and active ride control switches in motor vehicles, including when elemental mercury is imported or processed as part of an article). EPA defines “motor vehicle” for this SNUR by referencing the definition used in the emissions control regulations developed under the Clean Air Act (see 40 CFR 85.1703). As described in Unit III.A., EPA believes this action is necessary because manufacturing, processing, use, or disposal of elemental mercury in these switches may produce significant changes in human and environmental exposures to elemental mercury and methylmercury. B. What is the Agency's Authority for Taking this Action? Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) (15 U.S.C. 2604(a)(1)(B)), requires persons to submit a significant new use notification
(SNUN)to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use. The mechanism for reporting under this requirement is established under 40 CFR 721.25. C. Applicability of General Provisions General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. However, 40 CFR 721.45(f) does not apply to this SNUR. As a result, persons subject to the provisions of this rule are not exempt from significant new use reporting if they import or process elemental mercury as part of an article (see 40 CFR 721.5). Conversely, the exemption from notification requirements for exported articles (see 40 CFR 707.60(b)), remains in force. Thus, persons who export elemental mercury as part of an article are not required to provide export notice. Provisions relating to user fees appear at 40 CFR part 700. Persons subject to this SNUR must comply with the same notice requirements and EPA regulatory procedures as submitters of Premanufacture Notices
(PMNs)under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA sections 5(e), 5(f), 6, or 7 to control the activities for which the SNUN was submitted. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the **Federal Register** its reasons for not taking action. Persons who export or intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b). The regulations under TSCA section 12(b) appear at 40 CFR part 707, subpart D. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. Persons who import a chemical substance identified in a final SNUR are subject to the import certification requirements under TSCA section 13, which appear at 19 CFR 12.118 to 12.127 and 127.28. Such persons must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA, including any SNUR requirements. III. Objectives and Rationale of the Final Rule A. Overview This rule applies to elemental mercury (CAS No. 7439-97-6), which is a naturally occurring element. Because of its unique properties (e.g., exists as a liquid at room temperature and forms amalgams with many metals), elemental mercury has been used in many industrial processes and consumer products. Mercury switches exploit the ability of small quantities of elemental mercury to conduct electricity and remain one of the largest categories of elemental mercury product uses. In addition to its useful characteristics, mercury also may cause adverse health effects in humans and wildlife. These effects can vary depending on the form of mercury to which a person is exposed, as well as the magnitude, length, and frequency of exposure. The most prevalent human and wildlife exposure to mercury results from ingesting fish contaminated with methylmercury. Methylmercury is an organic compound that is formed via the conversion of elemental or inorganic mercury by certain microorganisms and other natural processes. For example, elemental mercury may evaporate and be emitted into the atmosphere. Atmospheric mercury can be deposited directly into water bodies or watersheds, where it can be washed into surface waters via overland run-off. Once deposited in sediments, certain microorganisms and other natural processes can convert elemental mercury into methylmercury. Methylmercury bioaccumulates, which means that it is taken up and concentrated in the tissues of aquatic, mammalian, avian, and other wildlife. Methylmercury is a highly toxic substance; a number of adverse health effects associated with exposure to it have been identified in humans and in animal studies. Most extensive are the data on neurotoxicity, particularly in developing organisms. Fetuses, infants, and young children generally are more sensitive to methylmercury's neurological effects than adults. By 2005, all fifty states had created fish-advisory programs. Through the end of 2004, forty-eight states, one territory, and two Indian tribes issued fish consumption advisories recommending that some people limit their consumption of fish from certain water bodies known to be contaminated by methylmercury. Also in 2004, EPA and the Food and Drug Administration
(FDA)jointly issued a national advisory providing advice to women of childbearing age and young children on mercury in fish and shellfish. The advisory stated that some fish and shellfish contain higher levels of mercury that may harm a fetus or the developing nervous system of a young child. As of today, the information in the 2004 EPA/FDA advisory remains current. Mercury switches were used for many years in motor vehicles in hood and trunk convenience lights, ABS, and active ride control systems. More than 200 million mercury switches were installed in motor vehicles from 1974 to 2000. In the United States, motor vehicles that reach the end of their useful life are often dismantled so that the useful parts can be reused and steel and other materials can be recycled. The steel industry recycles approximately 12 to 14 million end-of-life vehicles each year. During the recycling process, vehicles are dismantled, crushed, and shredded. Vehicle scrap is then separated into the ferrous, nonferrous, and motor vehicle shredder residue fractions. All of these fractions can be contaminated with elemental mercury, which can be released when switches are ruptured during processing. Steel fractions are sent to electric arc furnaces
(EAFs)and other scrap consumers to be melted and refined for use in other steel products. The EAF process uses intense heat, which can vaporize and emit elemental mercury into the atmosphere. Motor vehicles are believed to be the largest single source of elemental mercury in EAF emissions. The EPA air toxics program has identified EAFs as a priority sector. In response to increased concerns about exposure to anthropogenic sources of elemental mercury and the availability of suitable mercury-free products, Federal and State governments have made efforts to limit the use of elemental mercury in certain products. American automakers voluntarily eliminated the use of mercury switches in motor vehicles as of January 1, 2003. Foreign motor vehicle manufacturers eliminated the use of mercury switches in the 1990s. Over the next 20 years, it is anticipated that most of the motor vehicles containing mercury switches will reach the end of their useful lives, will be recycled, and ultimately will pass through EAFs and other scrap consumer facilities. Many States and non-governmental organizations have taken actions to remove or to encourage the removal of mercury switches from motor vehicles before they are recycled. For these reasons, the potential for elemental mercury emissions to be released during scrap consumption is expected to decrease as fewer motor vehicles containing mercury switches remain to be dismantled or recycled. While newly manufactured motor vehicles no longer contain mercury switches, certain switches are still available as aftermarket replacement parts. Mercury switches generally last the lifetime of the motor vehicle; however, switch replacement is required if a collision or another action damages the component containing the switch or the switch itself. Mercury switches are no longer used for replacement in hood and trunk convenience lights because mercury-free substitutes are readily available. However, no mercury-free alternative exists for mid-life replacement of ABS and active ride control system switches and a limited number of such switches remain available as replacement parts for pre-2003 motor vehicles. EPA believes that the demand for mercury switches as aftermarket replacement parts is currently low and likely will become negligible when most pre-2003 motor vehicles containing mercury switches in ABS and active ride control systems reach the end of their useful lives. EPA is excluding from this final SNUR mercury switches manufactured as aftermarket replacement parts for ABS and active ride control systems in vehicles manufactured before January 1, 2003. For a more detailed summary of background information (e.g., chemistry, environmental fate, exposure pathways, health and environmental effects, and use information), as well as references pertaining to elemental mercury that EPA considered before promulgating this final rule, please refer to the proposed rule as issued in **Federal Register** of July 11, 2006 (71 FR 39035) or the docket for this action under docket ID number EPA-HQ-OPPT-2005-0036. All documents in the docket are listed in the docket's index available at *http://www.regulations.gov* . B. EPA Findings and Rationale EPA is encouraged by the voluntary discontinuation of mercury-switch technologies in new vehicles as of January 1, 2003, and the anticipated reductions in mercury-switch production for mid-life replacement parts as pre-2003 vehicles containing mercury switches are no longer available and reach the end of their utility. However, EPA is concerned that the manufacturing or processing of elemental mercury for use in switches in new motor vehicles could be reinitiated in the future. Accordingly, EPA wants the opportunity to evaluate and control, where appropriate, activities associated with those uses, which contribute to atmospheric and environmental releases of elemental mercury. The required notification provided by a SNUN will provide EPA with the opportunity to evaluate activities associated with a significant new use and an opportunity to protect against unreasonable risks, if any, from exposure to mercury. In determining what constituted significant new uses for elemental mercury motor vehicle switches, EPA considered relevant information on the toxicity of mercury and likely exposures associated with the uses, as discussed in Unit III.A., and the four factors listed in TSCA section 5(a)(2), as discussed in Unit IV. After considering all relevant factors, EPA is designating as significant new uses the manufacture or processing of elemental mercury for: • Use in convenience light switches in new motor vehicles. • Use in convenience light switches as new aftermarket replacement parts for motor vehicles. • Use in switches in ABS in new motor vehicles. • Use in switches in ABS as new aftermarket replacement parts for motor vehicles that were manufactured after January 1, 2003. • Use in switches in active ride control systems in new motor vehicles. • Use in switches in active ride control systems as new aftermarket replacement parts for motor vehicles that were manufactured after January 1, 2003. EPA believes it is unlikely that companies would resume the use of mercury switches because mercury switches are no longer being used in new motor vehicles; effective mercury-free alternatives are increasingly available; use of elemental mercury in products is declining; and a growing number of states have banned the use of mercury switches in motor vehicles. In the event that mercury switch use as replacement parts in ABS and active ride control systems of pre-2003 motor vehicles does not decrease as described in this final rule, EPA may pursue additional regulatory action as appropriate under TSCA sections 4, 6, and 8. For a summary of alternative regulatory actions for elemental mercury that EPA considered before promulgating this final rule, please refer to the proposed rule as issued in **Federal Register** of July 11, 2006 (71 FR 39035). C. Summary and Effects of the Final Rule This final rule requires persons who intend to manufacture, import, or process elemental mercury for the significant new uses identified in this action to submit a SNUN at least 90 days before commencing such activity. The required notice will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that use before it occurs. This final rule will ensure that: • EPA will receive a SNUN indicating a person's intent to manufacture, import, or process elemental mercury for a designated significant new use before that activity begins. • EPA will have an opportunity to review and evaluate data and information submitted in a SNUN before the submitter begins manufacturing, importing, or processing elemental mercury for a designated significant new use. • EPA will have an opportunity to regulate prospective manufacturers, importers, or processors of elemental mercury before the notified significant new use occurs, provided such regulation is warranted pursuant to TSCA sections 5(e) or 5(f). For this SNUR, EPA is not including the general “article” exemption at 40 CFR 721.45(f). Thus, persons importing or processing elemental mercury, including when part of an article, for a significant new use would be subject to the notification requirements of 40 CFR 721.25. EPA is not including this exemption because mercury switches are articles, and a primary concern associated with this SNUR is potential exposures associated with the lifecycle of elemental mercury in certain motor vehicle switches. Further, it is possible to reclaim elemental mercury from certain articles, which could be used to produce motor vehicle switches. Conversely, the exemption from notification requirements for exported articles (see 40 CFR 707.60(b), remains in force. Thus, persons who export elemental mercury as part of an article are not required to provide export notice. D. Response to Public Comments EPA received ten comments on the proposed rule that was issued in the **Federal Register** of July 11, 2006 (71 FR 39035). Copies of all comments received are available in the public docket for this action. Two comments that expressed general support for the proposed rule and another comment, which consisted of a static web-based image of an article about the health effects of elemental mercury and methylmercury, were not addressed. Comments that were similar in nature were consolidated into the following summaries. A discussion of the comments germane to the rulemaking and EPA responses follows: 1. *Comment—Proposed action insufficient* . One commenter felt that the use of elemental mercury (and all other toxic substances) in motor vehicle manufacturing should be banned. In the alternative, the commenter suggested that automakers should be required to implement mercury recovery policies to recover all mercury used in the motor vehicle manufacturing process. *Response* . The actions requested by the commenter are outside the scope of this rulemaking. As mentioned in the proposed rule, EPA considered and rejected regulating elemental mercury under TSCA section 6(a). EPA concluded risk management action under TSCA section 6 is not necessary at this time because mercury switches are no longer being used in convenience lights, ABS, and active ride control systems installed in new motor vehicles; are no longer used in convenience light replacement parts; and are of very limited availability in ABS and active ride control replacement parts for some pre-2003 motor vehicles. This rule will allow EPA to address the potential risks associated with the described significant new uses of elemental mercury. Further, if the elimination of the use of mercury switches in ABS and active ride control replacement parts does not occur as anticipated, EPA may reconsider this decision and pursue additional regulatory action. 2. *Comment—Applicability of action and reporting requirements for motor vehicles involved in collisions and junkyards* . One commenter inquired as to the specific make and model of motor vehicles affected by the proposed rule, the amount of elemental mercury present in a typical convenience light switches, ABS switches, or active ride control system switches, and the reporting requirements for motor vehicles involved in a collision whereby a switch is ruptured and releases elemental mercury. Further, the commenter inquired as to the applicability of the proposed rule to junkyards. *Response* . EPA is not able to provide data on the specific make and model of motor vehicles that will be affected by this final rule. However, tables that describe “Automobiles with ABS or Ride Control Systems that Contain Mercury Switches,” “Number of Mercury Capsules Installed between 1970 and 2003, by switch application,” and “Vehicles with Mercury Switches Installed, 1985-2003 by switch application,” can be accessed in the public docket for the final rule in the report titled, “Market Study: Mercury Use in Auto Switches.” U.S. automakers phased-out the use of mercury switches in new vehicles on January 1, 2003. Each switch contains between 0.7 to 1.5 grams of elemental mercury. This action does not require the reporting of elemental mercury spills from a vehicle collision. The rule requires persons to notify EPA at least 90 days before commencing the manufacturing or processing of elemental mercury for use in certain new motor vehicle switches, as described in Unit III.B. and 40 CFR 721.10068(b)(2) of the regulatory text for this rule. A junkyard might be affected if it were manufacturing or processing elemental mercury for convenience light switches, ABS switches, or active ride control system switches, or manufacturing or processing elemental mercury and distributing it in commerce to persons who could use it in such switches. 3. *Comment—Clarification of export notification requirements and implementation of de minimis standard* . Two commenters requested that the applicability of export requirements under TSCA section 12(b) be further clarified. The commenters voiced concerns that language in the preamble of the proposed rule requires export notification for elemental mercury exported in any form. The commenters were concerned that trace amounts of elemental mercury (i.e., impurities), present in or on significant numbers of products in international commerce might trigger unduly burdensome export notification requirements. Instead, one of the commenters stated that export notification requirements should apply “only for elemental mercury when exported in the form subject to the SNUR, i.e., when used in convenience light switches, ABS switches, and active ride control switches in certain motor vehicles.” The commenters cited as precedent an EPA amendment of a rule issued under TSCA section 6 (59 FR 42769; August 19, 1994) (FRL-4867-3) (codified at 40 CFR 749.68), concerning hexavalent chromium used in comfort cooling towers. Both commenters also recommended that a *de minimis* standard should be adopted under TSCA section 12(b), whereby exports of chemical substances and mixtures in amounts less than the prescribed threshold would not be subject to notification requirements. *Response* . EPA will not, at this time, revisit its interpretation of TSCA section 12(b) and the implementing regulations at 40 CFR part 707, subpart D. Thus, one result of this SNUR is to trigger export notification requirements under TSCA section 12(b) for the export of elemental mercury regardless of its intended use. However, due to recent amendments to EPA's TSCA section 12(b) implementing regulations (see 71 FR 66234; November 14, 2006) (FRL-8101-3) (see 71 FR 68750; November 28, 2006) (FRL-8104-9), exporters will not be required to report exports with *de minimis* levels of elemental mercury and will only be required to provide TSCA section 12(b) notification once for export to any given country. The proposed rule indicated that the export notification requirements under TSCA section 12(b) would be applicable to the export of elemental mercury regardless of its intended use. Section 12(b)(2) of TSCA provides that, “If any person exports or intends to export to a foreign country a chemical substance or mixture for which . . . a rule has been proposed or promulgated under section 2604 [(TSCA section 5)] . . . , such person shall notify the Administrator of such exportation or intent to export and the Administrator shall furnish to the government of such country notice of such rule (15 U.S.C. 2611(b)(2)).” The TSCA section 12(b) export notification requirement for a chemical subject to a proposed or final SNUR is not contingent on whether the intended use of the chemical has been regulated under a SNUR, and EPA does not interpret TSCA section 12(b) to include an exemption for uses that are not regulated. In promulgating the TSCA section 12(b) implementing regulations, EPA explained its position, “that the export notification requirement for a chemical is not contingent on whether the intended use of the chemical has been regulated. Notice must be given to EPA even though the chemical is being exported for a use, or in a manner, that is not regulated domestically under the relevant section 5, 6, or 7 action, rule or order (45 FR 82844, 82846; December 16, 1980).” The commenters requested an exemption from the export notification requirements for the export of elemental mercury that would not be used for the significant new use. In support of the requested exemption, the commenters stated that EPA's amendment of a rule issued under TSCA section 6, which concerned hexavalent chromium in comfort cooling towers (59 FR 42769; August 19, 1994) (codified at 40 CFR 749.68), provided a precedent for this type of exemption. In the August 1994 hexavalent chromium action noted by the commenters, EPA amended 40 CFR 749.68 to clarify that only hexavalent chromium chemicals that could be used for water treatment were the subjects of the underlying TSCA section 6 regulation, not other hexavalent chromium chemicals. That amendment had the parallel effect of limiting the scope of TSCA section 12(b) export notifications that were required for those hexavalent chromium chemicals that could be used to treat water. The chemical subject to this SNUR is elemental mercury, thus TSCA section 12(b) requirements are applicable to the export of elemental mercury. It should be noted, however, that in accordance with TSCA section 12(b) regulations at 40 CFR 707.60(b), export notification for elemental mercury exported as part of an article is not required. EPA will not narrow the language of the final rule to confine export notification requirements, as requested by the commenter, “only for elemental mercury when exported in the form subject to the SNUR, i.e., when used in convenience light switches, ABS switches, and active ride control switches in certain motor vehicles.” 4. *Comment—Weighted average of mercury switch content* . One commenter recommended that market data cited in the preamble of the proposed rule, which pertained to the average content of elemental mercury in switches used in convenience light, ABS, or active ride control systems, should be supplemented to reflect the weighted average of all switches used industry-wide for such purposes in motor vehicles, which typically occur in one of three styles and weights. *Response* . The discrepancy between the averages of 0.8 grams per switch in Unit IV.E. of the proposed rule and the weighted average of 1.2 grams per switch, as submitted, is noted. The submitted data suggests that the amount of elemental mercury collectively contained in convenience light, ABS, or active ride control system switches, as well as the amounts potentially released into the environment, might be greater than estimated. However, for the purposes of this action, the data does not affect EPA's significant new use determinations as described herein. 5. *Comment—Lift article exemption in whole, maintain broad definition of “motor vehicle,” and incorporate condition for approval of new use* . One commenter advocated lifting the “article” exemption at 40 CFR 721.45(f) in whole, as a partial suspension (e.g., solely for articles containing motor vehicle switches) might be confusing or undermine the intent of the proposed rule. The commenter also concurred with the existing, broader definition of “motor vehicle,” and suggested the action apply to vehicles other than noncommercial motor vehicles that incorporate mercury switches for convenience light, ABS, or active ride control systems. Finally, the commenter suggested that EPA emphasize “mitigation requirements as a condition of approval for new use.” The commenter recommended that “new language [could] be included in the rule that would give States and EPA the ability to weigh the potential of cross-media impacts when considering significant new uses so that mitigation in other critical environmental areas can be included as a part of the decision making on significant new uses.” The commenter also urged EPA to consider “overall community reduction efforts as well as efforts by companies to manage overall environmental footprint” in its decision-making processes. *Response* . EPA agrees that the exemption for articles at 40 CFR 721.45(f) should not apply to this action, and will finalize the rule as proposed, without the “article” exemption. EPA also agrees that the proposed definition of motor vehicles should be finalized as proposed. In regard to placing emphasis on “mitigation requirements as a condition of approval for new use,” EPA notes that the SNUN review process is not an approval process. Instead, EPA reviews notifications and can take action, as appropriate, under TSCA sections 5(e), 5(f), 6, or 7, to regulate the significant new use. If EPA takes no action during the SNUN review period, then the SNUN submitter can commence the new use and EPA must issue a **Federal Register** document in accordance with TSCA section 5(g). As to considering cross-media impacts, specific mitigation requirements, and overall community reduction efforts in the “decision making on significant new uses,” EPA generally does consider cross-media impacts in the SNUN evaluation process and could request further information from a SNUN submitter as needed to facilitate assessment and, where appropriate, regulate significant new uses. Further, EPA routinely considers environmental and human exposures, hazards, risks, and data needs, and, where appropriate, follows up as required with SNUN submitters, to regulate or limit activities pending the development of information necessary to evaluate a significant new use through the issuance of TSCA section 5(e) orders. 6. *Comment—Potential expansion of elemental mercury emission reduction under other statutes* . One commenter suggested the development of an aggressive National Emission Standards for Hazardous Air Pollutants (NESHAPs) that focused on electric arc furnace facilities. *Response* . The actions requested by the commenter are outside the scope of this rulemaking. IV. Significant New Use Determination Section 5(a)(2) of TSCA provides that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors including: • The projected volume of manufacturing and processing of a chemical substance. • The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance. • The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance. • The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance (15 U.S.C. 2604(2)(A)-(D)). TSCA provides for the consideration of all relevant factors in making a significant new use determination, and here EPA considered other factors in addition to those enumerated in TSCA section 5(a)(2). To determine what would constitute a significant new use of elemental mercury, EPA considered relevant information about the toxicity of mercury, the likely exposures and releases associated with the lifecycle of elemental mercury manufactured for use in motor vehicle switches, and the four factors listed in TSCA section 5(a)(2). The lifecycle steps include the following: • Mercury switch manufacturing. • Motor vehicle manufacturing. • Motor vehicle collision, repair, and maintenance. • End-of-life vehicle recycling. After consideration of the relevant information about elemental mercury and the lifecycle steps of automobile manufacture, the statutory factors, and other considerations articulated in the proposed rule (71 FR 39041-39042; July 11, 2006), EPA finds that the use of elemental mercury in convenience light, ABS, and active ride control system switches for use in new motor vehicles to be a significant new use. EPA also finds the use of elemental mercury in certain switches as aftermarket replacement parts to be a significant new use: All aftermarket convenience light switches and those aftermarket ABS and active ride control system switches for motor vehicles manufactured after January 1, 2003. These findings are based on the reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of elemental mercury in such switches, reintroduction of elemental mercury in convenience light, ABS, and active ride control system switches for use in new motor vehicles would:
(1)Increase the volume of manufacturing, processing, and recycling of such switches;
(2)increase the magnitude and duration of exposure of human beings and the environment to elemental mercury; and
(3)result in the exposure of a category of workers to a different type or form of elemental mercury. Based on these considerations, EPA determined that any manufacturing or processing of elemental mercury for the uses designated in this rule is a significant new use. V. Applicability of Rule to Uses Occurring Before Effective Date of the Final Rule As discussed in the **Federal Register** of April 24, 1990 (55 FR 17376), EPA has decided that the intent of TSCA section 5(a)(1)(B) is best served by designating a use as a significant new use as of the date of publication of the proposed rule rather than as of the effective date of the final rule. If uses begun after publication of the proposed rule were considered ongoing rather than new, it would be difficult for EPA to establish SNUR notice requirements, because a person could defeat the SNUR by initiating the proposed significant new use before the rule became final, and then argue that the use was ongoing as of the effective date of the final rule. Thus, persons who began or begin commercial manufacture, import, or processing of elemental mercury for a significant new use designated in this rule will have to cease any such activity before the effective date of this rule. To resume their activities, these persons would have to comply with all applicable SNUR notice requirements and wait until the notice review period, including all extensions, expires. EPA has promulgated provisions to allow persons to comply with this SNUR before the effective date. If a person were to meet the conditions of advance compliance under 40 CFR 721.45(h), the person would be considered to have met the requirements of the final SNUR for those activities. VI. SNUN Submissions SNUNs should be mailed to the Environmental Protection Agency, OPPT Document Control Office (7407M), 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. Information must be submitted in the form and manner set forth in EPA Form No. 7710-25. This form is available electronically on the EPA website at *http://www.epa.gov/oppt/newchems/pubs/pmnforms.htm* , and in hard copy from the Environmental Assistance Division (7408M), OPPT, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001 (see 40 CFR 721.25(a) and 720.40(a)(2)(i)). VII. Test Data and Other Information EPA recognizes that TSCA section 5 does not require developing any particular test data or information before submission of a SNUN. Persons are required only to submit test data and information in their possession or control and to describe any other data known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 40 CFR 721.25). In view of the potential risks posed by manufacture, processing, distribution, and disposal of elemental mercury for use in motor vehicle switches, EPA recommends that potential SNUN submitters include data that would permit a reasoned evaluation of risks posed by elemental mercury. EPA encourages persons to consult with EPA staff before submitting a SNUN. As part of this optional pre-notice consultation, EPA will discuss specific data it believes may be useful in evaluating a significant new use. SNUNs submitted for a significant new use of elemental mercury without any test data may increase the likelihood that EPA will take action under TSCA section 5(e) to prohibit or limit activities associated with the significant new use intended. SNUN submitters should be aware that EPA will be better able to evaluate SNUNs that provide detailed information on: • Human exposure and environmental releases that may result from the significant new uses of elemental mercury. • Potential benefits of the significant new use of the elemental mercury. • Information on risks posed by the use of elemental mercury in motor vehicle switches relative to risks posed by mercury-free substitutes. • Information on how the concerns about elemental mercury emissions during disposal of end-of-life vehicles could be mitigated (e.g., rebates for switches removed before shredding). Submitters should consider including with a SNUN any other available studies on elemental mercury or studies on analogous substances which may demonstrate that the significant new uses being reported are unlikely to present an unreasonable risk. VIII. Economic Analysis A. SNUNs EPA evaluated the potential costs of establishing SNUR reporting requirements for potential manufacturers and processors of elemental mercury. While there is no precise way to calculate the total annual cost of compliance with this final rule, given the uncertainties related to predicting the number of SNUNs that would be submitted as a result of this SNUR, EPA estimates that the cost for preparing and submitting a SNUN is $7,302, including a $2,500 user fee required by 40 CFR 700.45(b)(2)(iii). Small businesses with annual sales of less than $40 million when combined with those of the parent company, if any, are subject to a reduced user fee of $100 (40 CFR 700.45(b)(1)). Based on past experience with SNURs and the low number of SNUNs which are submitted on an annual basis, EPA believes that there will be few, if any, SNUNs submitted as a result of this SNUR. EPA does not expect manufacturers of motor vehicles or mercury-containing replacement switches to choose to manufacture or process items that would require the submission of a SNUN. EPA believes that certain state laws that ban the use of mercury-containing switches in new motor vehicles, as well as marginal cost differences between mercury-containing and mercury-free switches, will make SNUN submission cost prohibitive. The costs of submitting SNUNs will not be incurred by any company unless that company decides to pursue a significant new use as defined in this SNUR. Further, while the expense of a notice and the uncertainty of possible EPA regulation may discourage certain innovations, that impact would be limited because such factors are unlikely to discourage an innovation that has high potential value. The complete economic analysis performed by EPA is available in the public docket, as referenced in the proposed rule. B. Export Notification As noted in Unit I. and Unit II.C., persons who intend to export a chemical substance identified in a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)). EPA estimated that the one-time cost of preparing and submitting an export notification was $93.02. The total costs of export notification will vary, depending on the number of required notifications (e.g., number of countries to which the chemical is exported). EPA is not able to estimate the total number of TSCA section 12(b) notifications that will be received as a result of this SNUR, nor the total number of companies that will file such notices. However, EPA expects that the total cost of complying with the export notification provisions of TSCA section 12(b) will be limited, based on past experience. IX. Statutory and Executive Order Reviews A. Regulatory Planning and Review Under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993), the Office of Management and Budget has determined that this final SNUR is not a “significant regulatory action” subject to review by OMB, because it does not meet the criteria in section 3(f) of the Executive Order. B. Paperwork Reduction Act The Office of Management and Budget has approved the information collection requirements contained in this rule under the provisions of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., and has assigned OMB control number 2070-0038 (EPA ICR No. 1188). This action would not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to EPA, the annual burden is estimated to require an average of 105 hours per submission. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN. In addition to the time and effort to prepare and submit a SNUN, manufacturers must maintain records associated with the SNUN submission for five years. The recordkeeping associated with preparing and filing a SNUN is assumed to require five percent of the time spent on reporting, or 5 hours. This brings the total estimated time burden associated with a SNUN to 110 hours. According to PRA, burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal Agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number and included on the related collection instrument or form, if applicable. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. In addition, EPA is amending the table in 40 CFR part 9 of currently approved OMB control numbers for various regulations to list the regulatory citation for the information requirements contained in this final rule. Due to the technical nature of the table, EPA finds that further notice and comment about amending the table is unnecessary. As a result, EPA finds that there is good cause under section 553(b)(3)(B) of the Administrative Procedures Act (APA), 5 U.S.C. 553(b)(3)(B), to amend the table in 40 CFR 9.1 without further notice and comment. C. Regulatory Flexibility Act Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., EPA hereby certifies that promulgation of this SNUR will not have a significant adverse economic impact on a substantial number of small entities. The rationale supporting this conclusion is as follows. A SNUR applies to any person (including small or large entities) who intends to engage in any activity described in the rule as a “significant new use.” By definition of the word “new,” and based on all information currently available to EPA, it appears that no small or large entities presently engage in such activity. Since a SNUR only requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN, no economic impact would even occur until someone decides to engage in those activities. Although some small entities may decide to conduct such activities in the future, EPA cannot presently determine how many instances, if any, there may be. However, EPA records indicate that an average of only 10 notices per year are received in response to the promulgation of more than 1,000 SNURs. Of those SNUNs submitted, none appear to be from small entities in response to any SNUR. In addition, the estimated reporting cost for the submission of a SNUN (see Unit VIII.A.), is minimal, regardless of the size of the applicant organization. Therefore, EPA believes that the potential economic impact of complying with this SNUR is not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published on June 2, 1997 (62 FR 29684) (FRL-5597-1), EPA presented its general determination that proposed and final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration. D. Unfunded Mandates Reform Act Based on EPA experience with proposing and finalizing SNURs, State, Local, and Tribal governments have not been impacted by these rulemakings. EPA does not have any reason to believe that any State, Local, or Tribal government will be impacted by this rulemaking. As such, EPA determined that this regulatory action will not impose any enforceable duty, contain any unfunded mandate, or otherwise have any affect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). E. Federalism This action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999). F. Consultation and Coordination with Indian Tribal Governments This final rule will not have Tribal implications because it will not have substantial direct effects on Indian Tribes, uniquely affect the communities of Indian Tribal governments, and does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000), do not apply to this final rule. G. Protection of Children from Environmental Health Risks and Safety Risks This final rule is not subject to Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997), 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. Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This final rule is not subject to Executive Order 13211, entitled *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use. I. National Technology Transfer and Advancement Act This action does not involve any technical standards; therefore, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272 note), does not apply to this action. J. Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). X. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the Agency promulgating the rule must submit a rule report to each House of the Congress and the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects 40 CFR Part 9 Environmental protection, Reporting and recordkeeping requirements. 40 CFR Part 721 Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements. Dated: September 27, 2007. Charles M. Auer, Director, Office of Pollution Prevention and Toxics. Therefore, 40 CFR parts 9 and 721 are amended as follows: PART 9—[AMENDED] 1. The authority citation for part 9 continues to read as follows: Authority: 7 U.S.C. 135 *et seq* ., 136-136y; 15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 31 U.S.C. 9701; 33 U.S.C. 1251 *et seq* ., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342, 1344, 1345
(d)and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4, 300j-9, 1857 *et seq* ., 6901-6992k, 7401-7671q, 7542, 9601-9657, 11023, 11048. 2. In § 9.1 the table is amended by adding a new entry in numerical order under the heading “Significant New Uses of Chemical Substances” to read as follows: § 9.1 OMB approvals under the Paperwork Reduction Act. 40 CFR citation OMB control No. * * * * * Significant New Uses of Chemical Substances * * * * * 721.10068 2070-0038 * * * * * PART 721—[AMENDED] 3. The authority citation for part 721 continues to read as follows: Authority: 15 U.S.C. 2604, 2607, and 2625(c). 4. By adding new § 721.10068 to subpart E to read as follows: § 721.10068 Elemental mercury.
(a)*Definitions* . The definitions in § 721.3 apply to this section. In addition, the following definition applies: *Motor vehicle* has the meaning found at 40 CFR 85.1703.
(b)*Chemical substances and significant new uses subject to reporting* .
(1)The chemical substance elemental mercury (CAS. No. 7439-97-6) is subject to reporting under this section for the significant new uses described in paragraph (b)(2) of this section.
(2)The significant new uses are:
(i)Manufacture or processing of elemental mercury for use in convenience light switches in new motor vehicles.
(ii)Manufacture or processing of elemental mercury for use in convenience light switches as new aftermarket replacement parts for motor vehicles.
(iii)Manufacture or processing of elemental mercury for use in switches in anti-lock brake systems
(ABS)in new motor vehicles.
(iv)Manufacture or processing of elemental mercury for use in switches in ABS as new aftermarket replacement parts for motor vehicles that were manufactured after January 1, 2003.
(v)Manufacture or processing of elemental mercury for use in switches in active ride control systems in new motor vehicles.
(vi)Manufacture or processing of elemental mercury for use in switches in active ride control systems as new aftermarket replacement parts for motor vehicles that were manufactured after January 1, 2003.
(c)*Specific requirements* . The provisions of subpart A of this part apply to this section except as modified by this paragraph.
(1)*Suspension or revocation of certain notification exemptions* . The provisions of § 721.45(f) do not apply to this section. A person who imports or processes elemental mercury as part of an article is not exempt from submitting a significant new use notice.
(2)[Reserved] [FR Doc. E7-19705 Filed 10-4-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2007-0511; FRL-8476-9] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Carbon Monoxide Maintenance Plan Update; Limited Maintenance Plan in Philadelphia County AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to approve a revision to the Pennsylvania State Implementation Plan
(SIP)that was submitted on March 19, 2007 by the Pennsylvania Department of the Environment. This revision is a conversion of the currently approved full maintenance plan for carbon monoxide for the years 2007-2017, to a maintenance plan that will utilize a limited maintenance plan option for the same period. This will allow Federal actions requiring conformity determinations to be considered as automatically satisfying the budget test for carbon monoxide. EPA is approving these revisions to the Philadelphia County carbon monoxide maintenance plan in accordance with the requirements of the Clean Air Act (the Act). This action is being taken under section 110 of the Act. DATES: This rule is effective on December 4, 2007 without further notice, unless EPA receives adverse written comment by November 5, 2007. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0511 by one of the following methods: A. *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. B. *E-mail: powers.marilyn@epa.gov* . C. *Mail:* EPA-R03-OAR-2007-0511, Marilyn Powers, Acting Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-0511. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the 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 during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Resources Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105; and the Department of Public Health, Air Management Services, 321 University Avenue, Philadelphia, Pennsylvania 19104. FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti,
(215)814-2174, or by e-mail at *magliocchetti.catherine@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information is arranged as follows: I. What Is the Background of This SIP Revision? II. What Is a Limited Maintenance Plan? III. What Does This Mean for Transportation Conformity? IV. What Final Action Is EPA Taking Today? V. Statutory and Executive Order Reviews I. What Is the Background of This SIP Revision? On March 19, 2007, the Pennsylvania Department of Environmental Protection submitted a SIP revision to EPA, requesting that EPA convert the previously approved second follow-on ten year carbon monoxide maintenance plan, covering the years 2007-2017, to a limited maintenance plan designation. In 1991, EPA designated part of Philadelphia County as a carbon monoxide nonattainment area (see 56 FR 56694, 11/6/91). The Commonwealth of Pennsylvania subsequently developed a state implementation plan to control carbon monoxide emissions, utilizing federal and state control measures, ultimately resulting in attainment of the carbon monoxide National Ambient Air Quality Standard (NAAQS). The area was redesignated to attainment, effective March 15, 1996 (61 FR 2926, 1/30/96) and the ten year maintenance plan covering the period 1997-2007 was also approved. Following this period, in accordance with section 175A(b) of the Act, on September 3, 2004, Pennsylvania submitted a second ten year follow-on maintenance plan, covering the period 2007-2017, providing for continued attainment of the carbon monoxide NAAQS in Philadelphia County. This maintenance plan, approved by EPA (70 FR 16958, 4/4/05) and effective on June 3, 2005, established a motor vehicle emissions budget for carbon monoxide that is considered constraining for the purposes of determining conformity with the approved SIP. The purpose of the latest SIP revision is to convert the full maintenance plan to a limited maintenance plan, which will allow for emissions budgets in the affected area to be treated as essentially not constraining for the purposes of future transportation and general conformity determinations. II. What Is a Limited Maintenance Plan? EPA detailed the limited maintenance plan option in a memorandum entitled, “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas,” signed by Joseph Paisie, Group Leader, Integrated Policy and Strategies Group, Office of Air Quality Planning and Standards (OAQPS), dated October 6, 1995. Pursuant to this approach, we will consider the maintenance demonstration satisfied for “nonclassified” areas if the monitoring data show that the design value is at or below 7.65 parts per million (ppm), which is equal to 85 percent of the level of the 8-hour carbon monoxide NAAQS. The design value must be based on eight consecutive quarters of data. For such areas, there is no requirement to project emissions of air quality over the maintenance period. We believe that if the area begins the maintenance period at or below 85 percent of the 8-hour carbon monoxide NAAQS, then the applicability of Prevention of Significant Deterioration
(PSD)requirements, the control measures already in the SIP, and Federal measures, should provide adequate assurance of maintenance over the 10-year maintenance period. In addition, the design value for the area must continue to be at or below 7.65 ppm until the time of the final EPA action. Current carbon monoxide design values for Philadelphia County meet the requirements for a limited maintenance plan. The current design value in Philadelphia for carbon monoxide is 3.4 ppm, and recent design values have been between one-third to less than one-half of the NAAQS for this pollutant. Projections of ambient air quality throughout the maintenance period conclude that the 2017 design value for carbon monoxide would be 2.2 ppm. Accordingly, we believe this redesignated carbon monoxide attainment area qualifies for use of a limited maintenance plan. Further, the EPA guidance document referenced above, sets forth the core criteria for a limited maintenance plan. All of these criteria were met in the full maintenance plan approved by EPA and effective June 3, 2005 (70 FR 16958, 4/4/05), and will not be restated here, as this action only relates to use of the limited maintenance plan option in the context of determining conformity with the SIP. III. What Does This Mean for Transportation Conformity? Section 176(c) of the Act defines transportation conformity as conformity to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. The Act further defines transportation conformity to mean that no Federal transportation activity will:
(1)Cause or contribute to any new violation of any standard in any area,
(2)increase the frequency or severity of any existing violation of a standard in any area; or
(3)delay timely attainment of any standard in any area. The Federal Transportation Conformity Rule, 40 CFR Part 93, subpart A, sets forth the criteria and procedures for demonstrations assuring conformity of transportation plans, programs and projects that are developed, funded or approved by the U.S. Department of Transportation, and by metropolitan planning organizations or other recipients of funds under Title 23 U.S.C. of the Federal Transit Administration (49 U.S.C. Chapter 53). The transportation conformity rule applies within all nonattainment and maintenance areas. As prescribed by the transportation conformity rule, once an area has an applicable state implementation plan with motor vehicle emissions budgets, the expected emissions from planned transportation activities must be consistent with (i.e., conform to) such established budgets for that area. In the case of the Philadelphia County, Pennsylvania, carbon monoxide limited maintenance plan area, however, the emissions budgets may be treated as essentially non-constraining for the length of the second maintenance period as long as the area continues to meet the limited maintenance plan criteria. There is no reason to expect that this area will experience so much growth in that period that a violation of the carbon monoxide NAAQS would result. Since limited maintenance plan areas are still maintenance areas however, transportation conformity determinations are still required for transportation plans, programs and projects. Specifically, determinations, transportation plans, transportation improvement programs and projects must still demonstrate that they are fiscally constrained (40 CFR part 108) and must meet the criteria consultation and Transportation Control Measure
(TCM)implementation with the conformity rule (40 CFR 93.112 and 40 CFR 93.113). In addition, projects in limited maintenance areas will still be required to meet the criteria for carbon monoxide hot spot analyses to satisfy “project level” conformity determinations (40 CFR 93.116 and 40 CFR 93.123). All aspects of transportation conformity (with the exception of satisfying the emissions budget test) will still be required. If a carbon monoxide attainment area monitor records concentrations at or above the limited maintenance eligibility criteria of 7.65 ppm, then the maintenance area will no longer qualify for a limited maintenance plan and will revert to a full maintenance plan. In this event, the limited maintenance plan would remain applicable for conformity purposes only until the full maintenance plan is submitted and EPA has found the SIP's motor vehicle emissions budgets adequate for conformity purposes, or EPA approves the full maintenance plan SIP revision. IV. What Final Action Is EPA Taking Today? EPA is approving a SIP revision request submitted by the Pennsylvania Department of the Environment, requesting a limited maintenance plan option for the carbon monoxide maintenance area in Philadelphia County. This SIP revision supplements the currently approved carbon monoxide maintenance plan and establishes a limited maintenance plan with an unlimited budget for regional motor vehicle emissions for the Philadelphia County, Pennsylvania carbon monoxide maintenance area. For future Federal actions requiring conformity determinations under the transportation conformity rule and general conformity rule (40 CFR Part 93), the area will be considered to already satisfy the budget test for carbon monoxide. We are publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's **Federal Register** , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 4, 2007 without further notice unless EPA receives adverse comment by November 5, 2007. If EPA receives adverse comment, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. V. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 4, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, which approves a conversion of the Philadelphia County carbon monoxide full maintenance plan to a limited maintenance plan option for the purpose of satisfying future conformity determinations, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations. Dated: September 14, 2007. Donald S. Welsh, Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart NN Pennsylvania 2. In § 52.2020, the table in paragraph (e)(1) is amended by revising the existing entry for Carbon Monoxide Maintenance Plan (Philadelphia County) to read as follows: § 52.2020 Identification of plan.
(e)* * *
(1)* * * Name of non-regulatory SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation * * * * * * * Carbon Monoxide Maintenance Plan Philadelphia County 9/8/95, 10/30/95 1/30/96 61 FR 2982 52.2063(c)(105). 9/3/04 4/4/05 70 FR 16958 Revised Carbon Monoxide Maintenance Plan Base Year Emissions Inventory using MOBILE 6. 3/19/07 10/5/07 [Insert page number where the document begins] Conversion of the Carbon Monoxide Maintenance Plan to a Limited Maintenance Plan Option. * * * * * * * [FR Doc. E7-19516 Filed 10-4-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 97 [EPA-R04-OAR-2007-0423-200743(a); FRL-8475-6] Approval of Implementation Plans; North Carolina: Clean Air Interstate Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is approving revisions to the North Carolina State Implementation Plan
(SIP)submitted by the State of North Carolina, through the North Carolina Department of Environmental and Natural Resources on August 7, 2006. These revisions incorporate provisions related to the implementation of EPA's Clean Air Interstate Rule (CAIR), promulgated on May 12, 2005, and subsequently revised on April 28, 2006, and December 13, 2006, and the CAIR Federal Implementation Plan
(FIP)concerning sulfur dioxide (SO <sup>2</sup> ), nitrogen oxides (NO <sup>X</sup> ) annual, and NO <sup>X</sup> ozone season emissions for the State of North Carolina, promulgated on April 28, 2006, and subsequently revised December 13, 2006. EPA is not making any changes to the CAIR FIP, but is amending, to the extent EPA approves North Carolina's SIP revisions, the appropriate appendices in the CAIR FIP trading rules simply to note that approval. On July 3, 2007, North Carolina requested that EPA only act on a portion of the August 7, 2006, submittal as an abbreviated SIP. Consequently, EPA is approving the abbreviated SIP revisions that address the methodology to be used to allocate annual and ozone season NO <sup>X</sup> allowances to existing and new units under the CAIR FIPs and CAIR FIP opt-in provisions. DATES: This direct final rule is effective December 4, 2007 without further notice, unless EPA receives adverse comment by November 5, 2007. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2007-0423, by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: ward.nacosta@epa.gov.* 3. *Fax:*
(404)562-9019. 4. *Mail:* “EPA-R04-OAR-2007-0423”, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. *Hand Delivery or Courier:* Nacosta C. Ward, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 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-R04-OAR-2007-0423.” 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 through *www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. 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 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 *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 *www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 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 Nacosta C. Ward, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is 404-562-9140. Ms. Ward can also be reached via electronic mail at *ward.nacosta@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Taking? 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 North Carolina's CAIR SIP Submittal A. State Budgets for Allowance Allocations B. CAIR Cap-and-Trade Programs C. Applicability Provisions for Non-Electric Generating Units
(EGUs)NO <sup>X</sup> SIP Call sources D. NO <sup>X</sup> Allowance Allocations E. Allocation of NO <sup>X</sup> Allowances From the Compliance Supplement Pool
(CSP)F. Individual Opt-In Units VI. Final Action VII. Statutory and Executive Order Reviews I. What Action Is EPA Taking? CAIR SIP Approval EPA is approving revisions to the North Carolina SIP, initially submitted on August 7, 2006, and revised on July 3, 2007, that would modify the application of certain provisions of the CAIR FIP concerning SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. (As discussed below, this less comprehensive CAIR SIP is termed an abbreviated SIP.) North Carolina is subject to the CAIR FIPs that implement the CAIR requirements by requiring certain electric generating units
(EGUs)to participate in the EPA-administered Federal CAIR SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season cap-and-trade programs. The SIP revisions provide a methodology for allocating NO <sup>X</sup> allowances for the NO <sup>X</sup> annual and NO <sup>X</sup> ozone season trading programs. The CAIR FIPs provide that this methodology, if approved by EPA, will be used to allocate NO <sup>X</sup> allowances to sources in North Carolina, instead of the federal allocation methodology otherwise provided in the FIP. The SIP revisions also allow for individual units not otherwise subject to the CAIR SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading programs to opt into such trading programs in accordance with opt-in provisions in the CAIR FIPs. Once approved, the SIP revisions will provide for the recordation of NO <sup>X</sup> annual and ozone season allowances using the allocations determined by North Carolina, including the NO <sup>X</sup> annual new unit growth pool for 2009-2014 in North Carolina's rule minus one ton, i.e., 2,610 tons and will allow certain units to opt into, and be allocated allowances under, the opt-in provisions in the CAIR FIPs. Consistent with the flexibility provided in the FIPs, these provisions, if approved, will be also be used to replace or supplement, as appropriate, the corresponding provisions in the CAIR FIPs for North Carolina. EPA is not making any changes to the CAIR FIP, but is amending, to the extent EPA approves North Carolina's SIP revision, the appropriate appendices in the CAIR FIP trading rules simply to note that approval. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. II. What Is the Regulatory History of the CAIR and the CAIR FIPs? The 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 particulates (PM <sup>2.5</sup> ) 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 <sup>2</sup> , which is a precursor to PM <sup>2.5</sup> formation, and/or NO <sup>X</sup> , which is a precursor to both ozone and PM <sup>2.5</sup> formation. For jurisdictions that contribute significantly to downwind PM <sup>2.5</sup> nonattainment, CAIR sets annual State-wide emission reduction requirements (i.e., budgets) for SO <sup>2</sup> and annual State-wide emission reduction requirements for NO <sup>X</sup> . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets State-wide emission reduction requirements for NO <sup>X</sup> for the ozone season (May 1st to September 30th). Under CAIR, States may implement these emission budgets by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures. CAIR explains to subject states what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act
(CAA)with regard to interstate transport with respect to the 8-hour ozone and PM <sup>2.5</sup> NAAQS. EPA made national findings, effective 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, 3 years after the promulgation of the 8-hour ozone and PM <sup>2.5</sup> NAAQS. These findings started a 2-year clock for EPA to promulgate a 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 certain EGUs to participate in the EPA-administered CAIR SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone-season model trading programs, as appropriate. The CAIR FIP SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading programs impose essentially the same requirements as, and are integrated with, the respective CAIR SIP trading programs. The integration of the CAIR 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 <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season) in all States covered by 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 the corresponding CAIR FIP provisions (e.g., the methodology for allocating NO <sup>X</sup> allowances to sources in the State), while the CAIR FIP remains in place for all other provisions. On April 28, 2006, EPA published two more 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 announced EPA's final decisions on reconsideration of five issues without making any substantive changes to the CAIR requirements. III. What Are the General Requirements of CAIR and the CAIR FIPs? CAIR establishes 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 an abbreviated SIP revision may submit limited SIP revisions to tailor the CAIR FIP cap-and-trade programs to the State submitting the revision. Specifically, an abbreviated SIP revision may establish certain applicability and allowance allocation provisions that, the CAIR FIPs provide, will be used instead of or in conjunction with the corresponding provisions in the CAIR FIP rules in that State. Specifically, the abbreviated SIP revisions may: 1. Include NO X SIP Call trading sources that are not EGUs under CAIR in the CAIR FIP NO X ozone season trading program; 2. Provide for allocation of NO X annual or ozone season allowances by the State, rather than the Administrator of the EPA or the Administrator's duly authorized representative (Administrator), and using a methodology chosen by the State; 3. Provide for allocation of NO X annual allowances from the Compliance Supplement Pool
(CSP)by the State, rather than by the Administrator, and 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 FIP cap-and-trade programs under the opt-in provisions in the CAIR FIP rules. With approval of an abbreviated SIP revision, the CAIR FIP remains in place, as tailored to sources in the State by the approved SIP revisions. Abbreviated SIP revisions can be submitted in lieu of, or as part of, CAIR full SIP revisions. States may want to designate part of their full SIP as an abbreviated SIP for EPA to act on first when the timing of the State's submission might not provide EPA with sufficient time to approve the full SIP prior to the deadline for recording NO X allocations. This will help ensure that the elements of the trading programs where flexibility is allowed are implemented according to the State's decisions. Submission of an abbreviated SIP revision does not preclude future submission of a CAIR full SIP revision. In this case, the July 3, 2007, submittal from North Carolina has been submitted as an abbreviated SIP revision. V. Analysis of North Carolina's CAIR SIP Submittal A. State Budgets for Allowance Allocations The CAIR NO X 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 pounds per million British thermal units (lb/mmBtu), for phase 1, and 0.125 lb/mmBtu, for phase 2, to obtain regional NO X budgets for 2009-2014 and for 2015 and thereafter, respectively. EPA derived the State NO X annual and ozone season budgets from the regional budgets using State heat input data adjusted by fuel factors. The CAIR State SO 2 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 under the Acid Rain Program for the years in phase 1 of CAIR (2010 through 2014) authorizes 0.50 ton of SO 2 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 2 emissions in the CAIR trading program. The CAIR FIPs established the budgets for North Carolina as 62,183 (2009-2014) and 51,819 (2015-thereafter) tons for NO X annual emissions, 28,392 (2009-2014) and 23,660 (2015-thereafter) tons for NO X ozone season emissions, and 137,342 (2010-2014) and 96,139 (2015-thereafter) tons for SO 2 emissions. North Carolina's SIP revision, being approved in this action, does not affect these budgets, which are total amounts of allowances available for allocation for each year under the EPA-administered cap-and-trade programs under the CAIR FIPs. In short, the abbreviated SIP revision only affects allocations of allowances under the established budgets. B. CAIR Cap-and-Trade Programs The CAIR NO X annual and ozone season FIPs both largely mirror the structure of the NO X SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO X annual and ozone season FIPs are similar, there are some differences. For example, the NO X annual FIP (but not the NO X ozone season FIP) provides for a CSP, which is discussed below and under which allowances may be awarded for early reductions of NO X annual emissions. As a further example, the NO X ozone season FIP reflects the fact that the CAIR NO X ozone season trading program replaces the NO X SIP Call trading program after the 2008 ozone season and is coordinated with the NO X SIP Call program. The NO X ozone season FIP provides incentives for early emissions reductions by allowing banked, pre-2009 NO X SIP Call allowances to be used for compliance in the CAIR NO X ozone season trading program. In addition, States have the option of continuing to meet their NO X SIP Call requirement by participating in the CAIR NO X ozone season trading program and including all their NO X SIP Call trading sources in that program. The provisions of the CAIR SO 2 FIP are also similar to the provisions of the NO X annual and ozone season FIPs. However, the SO 2 FIP is coordinated with the ongoing Acid Rain SO 2 cap-and-trade program under CAA title IV. The SO 2 FIP 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 2 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 2 cap-and-trade program. EPA used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for federal rather than State implementation. The CAIR model SO 2 , NO X annual, and NO X ozone season trading rules and the respective CAIR FIP trading rules are designed to work together as integrated SO 2 , NO X annual, and NO X ozone season trading programs. North Carolina is subject to the CAIR FIPs for ozone and PM 2.5 and the CAIR FIP trading programs for SO 2 , NO X annual, and NO X ozone season which apply to sources in North Carolina. Consistent with the flexibility it gives to States, the CAIR FIPs provide that States may submit abbreviated SIP revisions that will replace or supplement, as appropriate, certain provisions of the CAIR FIP trading programs. The July 3, 2007, submission of North Carolina is such an abbreviated SIP revision. C. Applicability Provisions for Non-Electric Generating Units
(EGUs)NO <sup>X</sup> SIP Call Sources In general, the CAIR FIP trading programs 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 megawatt electrical
(MWe)producing electricity for sale. States have the option of bringing in, for the CAIR NO X ozone season program only, those units in the State's NO X SIP Call trading program that are not EGUs as defined under CAIR. EPA advises States exercising this option to use provisions for applicability that are substantively identical to the provisions in 40 CFR 96.304 and add the applicability provisions in the State's NO X SIP Call trading rule for non-EGUs to the applicability provisions in 40 CFR 96.304 in order to include in the CAIR NO X ozone season trading program all units required to be in the State's NO X SIP Call trading program that are not already included under 40 CFR 96.304. Under this option, the CAIR NO X 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 X SIP Call trading program. Consistent with the flexibility given to States in the CAIR FIP, North Carolina has not chosen, in the abbreviated SIP revision being approved in today's action, to expand the applicability provisions of the CAIR NO X ozone season trading program to include all non-EGUs in the State's NO X SIP Call trading program. EPA notes that North Carolina has indicated that it intends to submit subsequently a full SIP revision that expands the applicability provisions of the CAIR NO X ozone season trading program in this manner. D. NO X Allowance Allocations Under the NO X allowance allocation methodology in the CAIR model trading rules and in the CAIR FIP, NO X 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 FIP 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. The CAIR FIP provides States the flexibility to establish a different NO X allowance allocation methodology that will be used to allocate allowances to sources in the States if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative NO X 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. Consistent with the flexibility given to States in the CAIR FIPs, North Carolina has chosen to replace the provisions of the CAIR NO <sup>X</sup> annual FIP concerning the allocation of NO <sup>X</sup> annual allowances with its own methodology. North Carolina has chosen to distribute NO <sup>X</sup> annual allowances by submitting the table adopted in 15A NCAC 02D .2403(a), which establishes the North Carolina CAIR NO <sup>X</sup> annual allocations for existing units. In addition, North Carolina has chosen to use the same methodology as in the CAIR FIP to allocate allowances for 2,610 and 1,131 tons of NO <sup>X</sup> to new unit growth for 2009-2014 and for 2015 and thereafter, respectively. Under 40 CFR 51.123(p)(1)(ii)(C), the State permitting authority must submit CAIR NO <sup>X</sup> annual allowance allocations for new units determined under an abbreviated SIP revision by October 31 of each year for which the allowances are allocated. North Carolina's rule does not address the question of when new unit allocations will be submitted to the Administrator and does not adopt either the timing set forth in 40 CFR 51.123(p)(1)(ii)(C), or any alternative timing, for the allocation submissions. However, in a letter dated September 18, 2007, North Carolina stated that its submissions of new unit allocations to the Administrator will meet the timing requirement in 40 CFR 51.123(p)(1)(ii)(C). In light of North Carolina's express intent to meet the timing requirements for submissions of new unit allocations, EPA is interpreting North Carolina's rule to require that new unit allocations be submitted to the Administrator by October 31 of each year for which new unit allocations are made. Consistent with the flexibility given to States in the CAIR FIPs, North Carolina has chosen to replace the provisions of the CAIR NO <sup>X</sup> ozone season FIP concerning allowance allocations with their own methodology. North Carolina has chosen to distribute NO <sup>X</sup> ozone season allowances by submitting the table adopted in 15A NCAC 02D .2405(a), which establishes the North Carolina CAIR NO <sup>X</sup> ozone season allocations for existing units. In addition, North Carolina has chosen to use the same methodology as in the CAIR FIP to allocate allowances for 1,206 and 531 tons of NO <sup>X</sup> to new units for 2009-2014 and for 2015 and thereafter, respectively. Under 40 CFR 51.123(ee)(2)(ii)(D), the State permitting authority must submit CAIR NO <sup>X</sup> ozone season allowance allocations for new units determined under an abbreviated SIP revision by July 31 of each year for which the allowances are allocated. North Carolina's rule does not address the question of when new unit allocations will be submitted to the Administrator and does not adopt either the timing set forth in 40 CFR 51.123(ee)(2)(ii)(D), or any alternative timing, for the allocation submissions. However, in a letter dated September 18, 2007, North Carolina stated that its submissions of new unit allocations to the Administrator will meet the timing requirement in 40 CFR 51.123(ee)(2)(ii)(D). In light of North Carolina's express intent to meet the timing requirements for submissions of new unit allocations, EPA is interpreting North Carolina's rule to require that new unit allocations be submitted to the Administrator by July 31 of each year for which new unit allocations are made. E. Allocation of NO X Allowances From the Compliance Supplement Pool
(CSP)The CSP provides 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 State's share of the projected emission reductions under CAIR. 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 NO <sup>X</sup> annual FIP 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 those States. Consistent with the flexibility given to States in the FIP, North Carolina has not chosen to modify the provisions of the CAIR NO <sup>X</sup> annual FIP concerning the allocation of allowances from the CSP, since the State does not have any allowances available to allocate under the CSP provisions. F. Individual Opt-In Units The opt-in provisions allow for 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) the CAIR trading program. A non-EGU may 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. The 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. The rules for each of the CAIR FIP trading programs include opt-in provisions that are essentially the same as those in the respective CAIR SIP model rules, except that the CAIR FIP opt-in provisions become effective in a State only if the State's abbreviated SIP revision adopts the opt-in provisions. The State may adopt the opt-in provisions entirely or may adopt them but exclude one of the allowance allocation methodologies. The State also has the option of not adopting any opt-in provisions in the abbreviated SIP revision and thereby providing for the CAIR FIP trading program to be implemented in the State without the ability for units to opt into the program. Consistent with the flexibility given to States in the FIPs, North Carolina has chosen to allow non-EGUs meeting certain requirements to participate in the CAIR NO <sup>X</sup> annual trading program. The North Carolina rule allows for both of the opt-in allocation methods as specified in 40 CFR part 97 Subpart II of the CAIR NO <sup>X</sup> annual trading program. Consistent with the flexibility given to States in the FIPs, North Carolina has chosen to permit non-EGUs meeting certain requirements to participate in the CAIR NO <sup>X</sup> ozone season trading program. The North Carolina rule allows for both of the opt-in allocation methods as specified in 40 CFR part 97 Subpart IIII of the CAIR NO <sup>X</sup> ozone season trading program. Consistent with the flexibility given to States in the FIPs, North Carolina has chosen to allow certain non-EGUs to opt into the CAIR SO <sup>2</sup> trading program. The North Carolina rule allows for both of the opt-in allocation methods as specified in 40 CFR part 97 Subpart III of the CAIR SO <sup>2</sup> trading program. VI. Final Action EPA is approving North Carolina's abbreviated CAIR SIP revisions submitted on July 3, 2007. North Carolina is covered by the CAIR FIPs, which requires participation in the EPA-administered CAIR FIP cap-and-trade programs for SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. Under these abbreviated SIP revisions and consistent with the flexibility given to States in the FIPs, North Carolina adopts provisions for allocating allowances under the CAIR FIP NO <sup>X</sup> annual and ozone season trading programs, including new unit provisions. EPA is approving North Carolina's CAIR NO <sup>X</sup> annual and ozone season allocation provisions (interpreted as discussed above) for units subject to the CAIR trading programs under the current CAIR FIP NO <sup>X</sup> annual and ozone season applicability provisions. In addition, North Carolina adopts in the abbreviated SIP revision provisions that allow for individual non-EGUs to opt into the CAIR FIP SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season cap-and-trade programs. EPA is approving North Carolina's allowing for opt-in units and therefore the application of the opt-in provisions in these CAIR FIP trading programs to units in North Carolina. As provided for in the CAIR FIPs, these provisions in the abbreviated SIP revision will replace or supplement the corresponding provisions of the CAIR FIPs in North Carolina. The abbreviated SIP revision meets the applicable requirements in 40 CFR 51.123(p) and (ee), with regard to NO <sup>X</sup> annual and NO <sup>X</sup> ozone season emissions, and 40 CFR 51.124(r), with regard to SO <sup>2</sup> emissions. EPA is not making any changes to the CAIR FIP, but is amending, to the extent EPA approves North Carolina's SIP revision, the appropriate appendices in the CAIR FIP trading rules simply to note that approval. EPA is approving the aforementioned changes to the SIP. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this **Federal Register** publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective December 4, 2007 without further notice unless the Agency receives adverse comments by November 5, 2007. If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 4, 2007 and no further action will be taken on the proposed rule. 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 approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 4, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 97 Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. Dated: September 21, 2007. J.I. Palmer, Jr., Regional Administrator, Region 4. 40 CFR parts 52 and 97 are amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart (II)—(North Carolina) 2. In § 52.1770(c) Table 1 is amended under Subchapter 2D by adding, in numerical order, a new chapter heading for “Section .2400 Clean Air Interstate Rules” and entries for “Section .2403(a)”, “Section .2405(a)”, and “Section .2412” to read as follows: § 52.1770 Identification of plan.
(c)* * * Table -1.—EPA-Approved North Carolina Regulations State citation Title/subject State effective date EPA approval date Explanation * * * * * * * Section .2400 Clean Air Interstate Rules Section .2403(a) Nitrogen Oxide Emissions 10/05/07 [Insert citation of publication] Section .2405(a) Nitrogen Oxide Emissions During Ozone Season 10/05/07 [Insert citation of publication] Section .2412 New Unit Growth 10/05/07 [Insert citation of publication] * * * * * * * PART 97—[AMENDED] 3. The authority citation for part 97 continues to read as follows: Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, *et seq.* 4. Appendix A to subpart EE is amended by adding in alphabetical order the entry “North Carolina” under paragraph 1. to read as follows: Appendix A to Subpart EE of Part 97—States With Approved State Implementation Plan Revisions Concerning Allocations 1. * * * North Carolina 5. Appendix A to subpart II of part 97 is amended by adding in alphabetical order the entry “North Carolina” under paragraphs 1. and 2. to read as follows: Appendix A to Subpart II of Part 97—States With Approved State Implementation Plan Revisions Concerning CAIR NO <sup>X</sup> Opt-In Units 1. * * * North Carolina 2. * * * North Carolina 6. Appendix A to subpart III of part 97 is amended by adding in alphabetical order the entry “North Carolina” under paragraphs 1. and 2. to read as follows: Appendix A to Subpart III of Part 97—States With Approved State Implementation Plan Revisions Concerning CAIR SO <sup>2</sup> Opt-In Units 1. * * * North Carolina 2. * * * North Carolina 7. Appendix A to subpart EEEE of part 97 is amended by adding in alphabetical order the entry “North Carolina” under the introductory text to read as follows: Appendix A to Subpart EEEE of Part 97—States With Approved State Implementation Plan Revisions Concerning Allocations North Carolina 8. Appendix A to subpart IIII of part 97 is amended by adding in alphabetical order the entry “North Carolina” under paragraphs 1. and 2. to read as follows: Appendix A to Subpart IIII of Part 97—States With Approved State Implementation Plan Revisions Concerning CAIR NO <sup>X</sup> Ozone Season Opt-in Units 1. * * * North Carolina 2. * * * North Carolina [FR Doc. E7-19317 Filed 10-4-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. The Mitigation Division Director of FEMA has resolved any appeals resulting from this notification. This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act* . This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act* . As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification* . This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism* . This final rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform* . This final rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: Flooding source(s) Location of referenced elevation * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground. Modified Communities affected Marshall County, Alabama, and Incorporated Areas Docket No.: FEMA-B-7702 Guntersville Lake Approximately 5,000 feet downstream of SR 69 Crossing +596 City of Guntersville, Marshall County (Unincorporated Areas). SR 69 Crossing +596 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Guntersville Maps are available for inspection at 341 Gunter Avenue, Guntersville, AL 35976. Marshall County (Unincorporated Areas) Maps are available for inspection at 424 Blount Avenue, Guntersville, AL 35976. Gallatin County, Kentucky and Incorporated Areas Docket No.: FEMA-B-7711 Ohio River Carroll County Line +471 City of Warsaw, Gallatin County (Unincorporated Areas). Boone County Line +479 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Warsaw Maps are available for inspection at 101 West Market Street, Warsaw, KY 41095. Gallatin County (Unincorporated Areas) Maps are available for inspection at 200 Washington Street, Warsaw, KY 41095. Letcher County, Kentucky, and Incorporated Areas Docket No.: FEMA-B-7713 North Fork Kentucky River Approximately 0.29 miles downstream of Hazard Road +1124 Letcher County (Unincorporated Areas). Approximately 0.14 miles downstream of the CSX Railroad (City of Whitesburg Corporate Limits) +1137 Approximately 0.16 miles downstream of State Route 15 near Piedmont Drive (City of Whitesburg Corporate Limits) +1161 Approximately 0.14 miles upstream of State Route 15 near the confluence with Pert Creek +1176 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES Letcher County (Unincorporated Areas) Maps are available for inspection at 156 Main Street, Whitesburg, KY 41858. Trimble County, Kentucky, and Incorporated Areas Docket No.: FEMA-B-7713 Ohio River Trimble County Limits (Downstream) +463 City of Milton. Trimble County Limits (Upstream) +464 Oldham County Line +457 Trimble County (Unincorporated Areas). City of Milton Corporate Limits +463 City of Milton Corporate Limits +464 Carroll County Line +464 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Milton Maps are available for inspection at 10179 U.S. Highway 421 North, Milton, KY 40045. Trimble County (Unincorporated Areas) Maps are available for inspection at 123 Church Street, Bedford, KY 40006. Wayne County, Nebraska and Incorporated Areas Docket No.: FEMA-B-7464 Deer Creek At confluence with South Logan Creek +1450 City of Wayne. At 574th Avenue +1460 Dog Creek Approximately 2000 feet upstream of confluence with South Logan Creek +1420 City of Wayne. At 858th Road +1439 South Logan Creek Approximately 350 feet downstream of confluence with Dog Creek +1416 City of Wayne. Approximately 75 feet upstream of Highway 15 +1444 Approximately 200 feet upstream of 854th Road +1465 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Wayne Maps are available for inspection at the City Office, 306 Pearl Street, Wayne, NE 68787. Sandoval County, New Mexico and Incorporated Areas Docket No.: FEMA-B-7709 Tributary A (southern split) Approximately 130 feet upstream from the convergence with Tributary A +5417 City of Rio Rancho. Approximately 115 feet upstream from 11th street +5436 * National Geodetic Vertical Datum. # Depth in feet above ground. + North American Vertical Datum. ADDRESSES City of Rio Rancho Maps are available for inspection at 3900 Southern Blvd, Rio Rancho, NM 87124. Brown County, South Dakota, and Incorporated Areas Docket No.: FEMA-B-7473 4th Street Drainageway Approximately 400 feet downstream of Sixth Street +1,295 City of Groton. Approximately 200 feet downstream of Sixth Street +1,296 Approximately 300 feet upstream of 13th Avenue/Highway 12 +1,302 # Depth in feet above ground. * National Geodetic Vertical Datum. + North American Vertical Datum. ADDRESSES City of Groton Maps are available for inspection at City Hall, 204 North Main Street, Groton, South Dakota 57445. (Catalog of Federal Domestic Assistance No. 97.022, Flood Insurance.) Dated: September 21, 2007. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E7-19681 Filed 10-4-07; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 90 [WT Docket No. 02-55; FCC 07-167] Improving Public Safety Communications in the 800 MHz Band; Petitions for Waiver of Bethlehem, Pennsylvania and Reading, PA; Petitions for Waiver of Rockdale County, Newton County, City of Covington, Walton County, and Spalding County, GA AGENCY: Federal Communications Commission. ACTION: Final rule; clarification. SUMMARY: In the *Third Memorandum Opinion and Order,* the Federal Communications Commission finds that Sprint Corporation (Sprint) has not met the December 26, 2006, eighteen-month benchmark for clearing Channel 1-120 incumbents as required by the 800 MHz rebanding process. In that connection, the Commission denies the portion of Sprint's Petition for Reconsideration that sought “clarification” of the eighteen-month benchmark. The Commission also establishes additional benchmarks to ensure timely clearing of the Channel 1-120 band by all incumbent licensees, including Sprint itself. The Commission also requires Sprint to provide monthly reports on its channel-clearing efforts. In addition, the Commission clarifies the 30-month rebanding benchmark, which requires all 800 MHz licensees that must reband to have “commenced” reconfiguration of their systems by December 26, 2007. Finally, the Commission grants several petitions by NPSPAC licensees to extend their rebanding deadline until after incumbent analog broadcasters operating in their area on TV Channel 69 have vacated the spectrum as part of the DTV transition. DATES: Effective September 12, 2007. FOR FURTHER INFORMATION CONTACT: Roberto Mussenden, Policy Division, Public Safety and Homeland Security Bureau, at
(202)418-1428 or *Roberto.Mussenden@fcc.gov;* John Evanoff, Policy Division, Public Safety and Homeland Security Bureau, at
(202)418-0848 or *John Evanoff@fcc.gov.* SUPPLEMENTARY INFORMATION: This summary of the Commission's Third Memorandum Opinion and Order in WT Docket No. 02-55, adopted on September 11, 2007, and released on September 12, 2007. The full text of this document is available for public inspection on the Commission's Internet site at *http://www.fcc.gov.* It is also available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The full text of this document also may be purchased from the Commission's duplication contractor, Best Copy and Printing Inc., Portals II, 445 12th St., SW., Room CY-B402, Washington, DC 20554; telephone
(202)488-5300; fax
(202)488-5563; e-mail *FCC@BCPIWEB.COM.* Background 1. In the 800 MHz Report and Order, 69 FR 67823 (November 22, 2004), the Commission ordered the rebanding of the 800 MHz band to resolve interference between commercial and public safety systems in the band. In that Order, the Commission required Sprint to complete retuning of Channel 1-120 licensees (i.e., licensees operating in the 806-809/851-854 MHz band) in twenty NPSPAC regions within eighteen months of the start of the 36-month rebanding period. In the 800 MHz Supplemental Order, 70 FR 6758, February 8, 2005, the Commission modified this benchmark to require Sprint to relocate all Channel 1-120 incumbents other than Sprint and SouthernLINC in “the first twenty NPSPAC Regions the Transition Administrator has scheduled for band reconfiguration.” The Commission also required Sprint to have initiated retuning negotiations with all NPSPAC licensees in the same twenty regions by the eighteen-month benchmark date. Discussion A. Eighteen Month Benchmark 1. Petition for Reconsideration 2. *Petition for Reconsideration.* The Commission denied the portion of Sprint's Petition for Reconsideration that sought “clarification” of the eighteen-month benchmark. In a Petition for Reconsideration filed in January 2006, Sprint requested that the Commission “clarify” the nature of the eighteen-month rebanding benchmark. Because the Commission found that Sprint's request was more appropriately characterized as a Petition for Reconsideration, the Commission concluded that Sprint's request was time-barred. Even if the Commission considered Sprint's request on the merits, the Commission continued to believe that the eighteen-month benchmark as defined in the *800 MHz Supplemental Order* should be retained. 2. Sprint's Compliance With the Eighteen Month Benchmark 3. *Eighteen Month Benchmark Compliance.* The Commission found that Sprint has not met the December 26, 2006, eighteen-month benchmark for clearing Channel 1-120 incumbents as required by the 800 MHz rebanding process. On January 26, 2007, Sprint filed a report with the Public Safety and Homeland Security Bureau on the status of 800 MHz band reconfiguration and the steps Sprint had taken to meet the eighteen-month benchmark. In its report, Sprint stated that as of the December 26, 2006, benchmark date, it had completed clearing and relocation of all Channel 1-120 incumbents, other than Sprint and SouthernLINC, in 26 of 55 NPSPAC regions, including seven Wave 1 regions, sixteen Wave 2 regions, two Wave 3 regions, and one Wave 4 region. On March 6, 2007, the Bureau requested that the TA certify that Sprint had completed the rebanding activities described in the Sprint Report. On March 20, 2007, the TA filed its certification of Sprint's performance. The Commission concluded that Sprint has not met the first element of the eighteen-month benchmark because as of the benchmark date, Sprint had not fully cleared Channel 1-120 incumbents in all fifteen Wave 1 regions. With regard to the second element of the eighteen-month benchmark, the Commission concluded that Sprint has met this element of the eighteen-month benchmark. 4. In the *800 MHz Report and Order,* the Commission stated that if Sprint failed to meet the eighteen-month benchmark “for reasons that [Sprint], with the exercise of due diligence could reasonably have avoided, the Commission may consider and exercise any appropriate enforcement action within its authority, including assessment of monetary forfeitures or, if warranted, license revocation.” While the Commission deferred consideration of monetary forfeitures and license revocation at this time, the Commission concluded that it is in the public interest to adopt additional benchmarks to ensure that Sprint supports continued progress in rebanding and a smooth transition for critical public safety communications systems. Establishing such benchmarks will also provide important guidance to all stakeholders and will enhance the Commission's ability to monitor and enforce progress as rebanding moves into its later stages. B. Additional Benchmarks 5. The Commission established additional benchmarks to ensure timely clearing of the Channel 1-120 band by all incumbent licensees, including Sprint itself. First, with limited exceptions noted below, we require Sprint to complete relocation of all non-Sprint, non-SouthernLINC Channel 1-120 incumbents in all regions in Waves 1 through 3, and in the non-border regions of Wave 4, by December 26, 2007. The Commission excluded from this benchmark those Stage 1 licensees that also have NPSPAC facilities and that have elected to relocate both their Channel 1-120 and NPSPAC facilities in Stage 2. The Commission will also not require Sprint to complete Stage 1 clearing in Puerto Rico by the benchmark date, because the Puerto Rico band plan is currently being revised. Finally, as discussed below, beginning on October 1, 2007, the Commission will require Sprint to provide a monthly update on its progress toward completing Channel 1-120 clearing. 6. Second, the Commission also imposed benchmarks with respect to the clearing of Channel 1-120 spectrum used by Sprint and SouthernLINC. These benchmarks are essential to clear the Channel 1-120 spectrum for timely relocation by NPSPAC, and to eliminate any incentive for Sprint to delay rebanding in order to continue using 800 MHz spectrum designated for public safety as part of its own network. First, FRAs between Sprint and relocating NPSPAC licensees must provide for timely clearing of the necessary spectrum by Sprint to facilitate NPSPAC relocation. The *800 MHz Report and Order* requires Sprint to cease using Channel 1-120 channels to accommodate NPSPAC relocation. To ensure that this clearing process occurs in a timely manner, in any case in which a NPSPAC licensee requests access to spectrum in the new NPSPAC band because it requires the spectrum for testing purposes or to commence operations, Sprint must clear the necessary channels within 90 days of the request. For any request made on or after January 1, 2008, Sprint must clear the necessary spectrum within 60 days of the request. 7. The Commission recognized that imposing this requirement will require Sprint to implement channel swaps and other adjustments to its own network, which could have an impact both on Sprint's network capacity and on other NPSPAC licensees in the area. The Commission emphasized that the spectrum requirements of NPSPAC licensees take precedence over Sprint network capacity issues, and that Sprint is responsible for ensuring that other NPSPAC licensees do not experience harmful interference as a result of Sprint's own network modifications. The Commission noted that Sprint has had ample opportunity to plan for these contingencies and that the Commission has also established mechanisms that enable Sprint to prepare for and mitigate spectrum shortfalls it may experience in accommodating rebanding by other licensees, e.g., by providing access to 900 MHz spectrum and crediting Sprint for the cost of constructing additional cell sites to increase capacity. 8. The Commission also affirmed that the Commission's orders require Sprint to vacate the entire Channel 1-120 band, other than in Wave 4 border areas, by the end of the 36-month transition period on June 26, 2008. The *800 MHz Report and Order* stated that “we require Nextel to vacate all of its spectrum holdings below 817 MHz/862 MHz” as part of the transition process. This also requires Sprint to clear all of SouthernLINC's Channel 1-120 holdings by June 26, 2008, and provide for SouthernLINC's relocation to comparable spectrum. The Commission emphasized that Sprint must clear its Channel 1-120 holdings by the June 2008 deadline regardless of whether all NPSPAC licensees in a given region are prepared to relocate within that time frame. In that connection, the Commission disagreed with Sprint's contention that requiring it to vacate spectrum by June 2008 “would seriously harm public safety” and “squander scarce spectrum resources.” 9. Nevertheless, in the event that the Commission were to grant any NPSPAC licensee a waiver allowing it to relocate to the new NPSPAC band after June 26, 2008, the Commission stated that it will allow Sprint to petition to remain temporarily on the Channel 1-120 channels that it would otherwise have to vacate to accommodate the NPSPAC system. In any such petition, Sprint must demonstrate that public safety will not be adversely affected by the extension, that it has no reasonable alternative, and that the extension is otherwise in the public interest. Any extension granted to Sprint under this procedure will require Sprint to relinquish the channels on 60 days notice by the NPSPAC licensee as described in paragraph 23 above. The Commission also emphasized that Sprint may not under any circumstances remain on any Channel 1-120 channel once the corresponding channel in the 821-824/866-869 MHz band becomes available to it. For example, if a channel in the 821-824/866-869 MHz band is currently unoccupied by a NPSPAC licensee, and the channel becomes available to Sprint after June 26, 2008, Sprint may not continue to use the corresponding Channel 1-120 channel, even though the channel is not needed to accommodate a relocating NPSPAC licensee. 10. The Commission also affirmed that Sprint must vacate all of its remaining spectrum in the interleaved portion of the 800 MHz band, as well as the Expansion Band and Guard Band, by June 26, 2008, except in Wave 4 border areas, regardless of any other rebanding contingency. Sprint has already vacated some spectrum in these portions of the band to accommodate relocation of Stage 1 licensees from Channels 1-120. Prior to June 26, 2008, Sprint may continue to use its spectrum in the interleaved, Guard, and Expansion Bands to the extent it is not needed for relocation of other licensees. However, Sprint must clear this remaining spectrum by the end of the transition on June 26, 2008 because the channels that Sprint vacates will revert to the Commission for re-licensing, and public safety will have exclusive access to the vacated interleaved channels for a three-year period after rebanding is completed in each region. 11. To assist in monitoring and enforcing each of the band-clearing conditions imposed on Sprint, as set forth above, the Commission required that beginning on October 1, 2007, Sprint file monthly reports with the TA and PSHSB on its clearing of the Channel 1-120 spectrum. These reports are intended to provide specific, verifiable information to allow us to monitor Sprint's progress and determine whether it is in compliance with each of the benchmarks and conditions of this order, as well as with other applicable provisions of the 800 MHz rebanding rules. Specifically, Sprint must include the following information in each monthly report with respect to clearing of Channels 1-120. This information must be provided separately for each NPSPAC region:
(1)The number of non-Sprint, non-SouthernLINC licensees that have been cleared from Channels 1-120, and the number that remain to be cleared;
(2)For each region in which SouthernLINC operates, the number of SouthernLINC channels in the Channel 1-120 band that have been cleared, and the number that remain to be cleared;
(3)The number of Channel 1-120 channels that are being used by Sprint in its own network, and the number of Channel 1-120 channels that Sprint has vacated; and
(4)The identity of each NPSPAC licensee that has requested that Sprint vacate Channel 1-120 channels, the date of the licensee's request, the number of channels that Sprint has been asked to vacate, and the date proposed by the licensee for Sprint to vacate the specified channels. 12. These monthly reports by Sprint will assist the Commission in monitoring Sprint's compliance with its Stage 1 implementation obligations, but will also provide important information relevant to the progress of Stage 2 rebanding of NPSPAC licensees. This reporting requirement is imposed as a separate condition on Sprint's licenses as modified in the Commission's orders in this proceeding. To the extent that Sprint fails to satisfy this reporting requirement, the Commission may consider any appropriate enforcement action within its authority, including but not limited to revocation of Sprint's modified licenses. Sprint also remains subject to all prior requirements and license conditions adopted in this proceeding. C. 30-Month Benchmark 13. The Commission clarified the 30-month rebanding benchmark, which requires all 800 MHz licensees that must reband to have “commenced” reconfiguration of their systems by December 26, 2007. The *800 MHz Report and Order* established a 30-month benchmark for the 800 MHz rebanding process. Specifically, the Commission required that all 800 MHz systems “must have commenced reconfiguration within 30 months of the Commission Public Notice announcing the start date of reconfiguration in first NPSPAC region.” Under the rebanding schedule, this 30-month date falls on December 26, 2007. To ensure that all parties take the necessary steps to meet this benchmark, the Commission provided the following guidance. 14. First, in a companion Public Notice released on September 12, 2007, the Commission adopted new timelines for non-border area NPSPAC licensees to complete planning and FRA negotiations and to begin rebanding implementation. Licensees who are in compliance with these timelines as of December 26, 2007 will be deemed to be in compliance with the 30-month benchmark. The Commission will apply the benchmark to all Wave 1-3 licensees and to all Wave 4 licensees that have received frequency assignments from the TA as of September 12, 2007, the release date of this order. However, the Commission will not apply this benchmark to Wave 4 licensees that have not received frequency assignments because their systems are in border regions affected by ongoing negotiations with Canada and Mexico. The Commission, however, will establish an appropriate implementation benchmark for Wave 4 licensees at a later date. Finally, the Commission directed the TA to submit a report to the Public Safety and Homeland Security Bureau by January 15, 2008 regarding whether the 30-month benchmark as defined above has been met. The TA report should certify whether all covered licensees have complied with the timelines set forth in the Public Notice, and identify all cases in which the timelines have not been met. D. Rebanding in Markets With Channel 69 Incumbents 15. The Commission granted several petitions by NPSPAC licensees to extend their rebanding deadline until after incumbent analog broadcasters operating in their area on TV Channel 69 have vacated the spectrum as part of the DTV transition. Two NPSPAC licensees in eastern Pennsylvania and four NPSPAC licensees in the Atlanta, Georgia area have filed requests for extension of the June 26, 2008 rebanding deadline based on their proximity to incumbent full power analog TV broadcasters WFMZ-TV and WUPA, operating on Channel 69 (800-806 MHz) in Allentown, Pennsylvania and Atlanta, respectively. These NPSPAC licensees (collectively, Petitioners) expressed concern that if they retune to the new NPSPAC band (806-809 MHz) before the February 17, 2009 DTV transition date, they will receive out-of-band emission
(OOBE)interference on their new NPSPAC channels from the Allentown and Atlanta Channel 69 incumbents. The Commission granted Petitioners' requests in part and will allow them to delay the commencement of their infrastructure retune until March 1, 2009. However, the Commission directed Petitioners to proceed with (and Sprint to pay for) planning and other preparatory rebanding activity (e.g., replacement and reprogramming of mobiles) that can occur prior to the DTV transition date. 16. Finally, the Commission delegated authority to the Public Safety and Homeland Security Bureau to consider future requests by 800 MHz licensees to extend the 36-month deadline as it applies to the rebanding of their particular systems. The Commission directed the Bureau to subject such extension requests to a high level of scrutiny. Licensees submitting requests to the Bureau will be expected to demonstrate that they have worked diligently and in good faith to complete rebanding expeditiously, and that the amount of additional time requested is no more than is reasonably necessary to complete the rebanding process. Ordering Clauses 17. Accordingly, *it is ordered* that, pursuant to sections 4(i), 303(f), 309, 316, 332, 337 and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(f), 309, 316, 332, 337 and 405, this Third Memorandum Opinion and Order is hereby adopted. 18. *It is further ordered* that the Petition for Reconsideration filed by Sprint Nextel Corporation, on January 27, 2006 is dismissed to the extent described herein. 19. *It is further ordered* that, as a condition of its 800 MHz and 1.9 GHz modified licenses, Sprint Corporation shall comply with the benchmarks and reporting requirements set forth herein. 20. *It is further ordered* that the 800 MHz Transition Administrator, on January 15, 2008, shall submit a report on the progress of band reconfiguration to the extent described herein. 21. *It is further ordered* pursuant to the authority of section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and sections 1.925 of the Commission's Rules, 47 CFR 1.925 that the Requests for Waiver submitted by the Cities of Bethlehem and Reading, Pennsylvania, and Covington, Georgia, and the Counties of Rockdale, Newton, Walton, and Spalding, Georgia, in the above-captioned proceeding are granted to the extent described herein. 22. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-19641 Filed 10-4-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 21 RIN 1018-AV10 Migratory Bird Permits; Removal of Migratory Birds From Buildings AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service, change the regulations governing migratory bird permitting. We amend 50 CFR part 21 to allow removal of migratory birds (other than federally listed threatened or endangered species, bald eagles, and golden eagles) from inside buildings in which the birds may pose a threat to themselves, to public health and safety, or to commercial interests. DATES: This rule is effective on November 5, 2007. ADDRESSES: The complete file for this rule is available for public inspection, by appointment, at the Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4501 North Fairfax Drive, Room 4091, Arlington, Virginia 22203-1610. FOR FURTHER INFORMATION CONTACT: George T. Allen, Wildlife Biologist, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 703-358-1825. SUPPLEMENTARY INFORMATION: Background The U.S. Fish and Wildlife Service is the Federal agency delegated the primary responsibility for managing migratory birds. The delegation is authorized by the Migratory Bird Treaty Act
(MBTA)(16 U.S.C. 703 *et seq.* ), which implements conventions with Great Britain (for Canada), Mexico, Japan, and the Soviet Union (Russia). Raptors (birds of prey) are afforded Federal protection by the 1972 amendment to the Convention for the Protection of Migratory Birds and Game Animals, February 7, 1936, United States-Mexico, as amended; the Convention between the United States and Japan for the Protection of Migratory Birds in Danger of Extinction and Their Environment, September 19, 1974; and the Convention Between the United States of America and the Union of Soviet Socialist Republics (Russia) Concerning the Conservation of Migratory Birds and Their Environment, November 26, 1976. A list of migratory bird species protected by the MBTA can be found at 50 CFR 10.13. To simplify removal of migratory birds from buildings in which their presence may be a threat to the birds, to public health and safety, or to commercial interests, we will allow the removal of any migratory bird, except a threatened or endangered species, a bald eagle, or a golden eagle, from the inside of any building in which a bird might be trapped, without requiring a migratory bird permit to do so. The bird must be captured using a humane method and, in most cases, immediately released to the wild. This regulation does not allow removal of birds or nests from the outside of buildings without a permit. Removal of active nests from inside buildings must be conducted by a federally permitted migratory bird rehabilitator. This regulatory addition will facilitate removal of birds from buildings, which would otherwise require a migratory bird permit. Our changes are detailed below in the Regulation Promulgation section of this document. What Comments on the Proposed Rule Did We Receive? We received six sets of comments on the proposed rule. The comments raised relatively few issues, which we discuss here. *Issue:* One commenter believed that the rule should include bird nests. *Response:* Removal or destruction of nests of most species of birds when the nests are not in use is allowed. With this regulations change, an active nest may be removed from inside a building with the assistance of a permitted rehabilitator. We clarified the relevant language in this rule. *Issue:* A commenter suggested that the words “and for buildings undergoing renovation or demolition” be added after the words “commercial interests.” *Response:* Renovation and demolition of buildings can be conducted outside the nesting season, which is relatively short for most species. A nest of any species protected under one or more of the Migratory Bird Conventions is protected during the nesting season. This provision is unchanged by this rule. *Comment:* “We suggest this proposal should more specifically indicate what time frame is meant by ‘promptly' as used in the sections on releasing birds and on transferring injured and orphaned birds to rehabilitators.” *Response:* We replaced the term “promptly” with “immediately,” and qualified this requirement slightly by requiring that an exhausted, ill, injured, or orphaned bird be sent to a rehabilitator. *Comment:* “I fear that if you open up this wildlife management category as is proposed, there will be a resulting unorthodox influx of raptors into warehouse buildings across the United States to clean-out invasive bird species. The claim will be they came through the doors when, actually, many will have been intentionally introduced by unscrupulous lay-people and store managers having introduced the raptor to its captivity and peril but unable to get it out. I already see and hear about many of these every year. However, something does need to happen to improve the raptor recovery service response time to these corporations, but something also needs to be done to prevent the criminal activity of capturing a free raptor in the environment and placing it in harms way into a “box store” environment to clean-out invasive species. All too often, these magnificent wild raptors perish trying to get out or by being mishandled.” *Response:* In most cases this action is not legal, but we added language to the regulation to address this concern. Required Determinations Regulatory Planning and Review The Office of Management and Budget has determined, in accordance with the criteria in Executive Order (E.O.) 12866, that this rule is not a significant regulatory action. a. This rule will not have an annual economic effect of $100 million or more. It will not adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis thus is not required. There are minimal costs associated with this rule. b. This rule does not create inconsistencies with other agencies' actions. It deals solely with governance of migratory bird permitting in the United States. No other Federal agency has any role in regulating activities with migratory birds. c. There are no entitlements, grants, user fees, or loan programs associated with the regulation of birds in buildings. d. This rule does not raise novel legal or policy issues, and is in compliance with other laws, policies, and regulations. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and we certify that this action will not have a significant economic impact on a substantial number of small entities, because the changes we are making are intended primarily to simplify removal of birds from structures in which the birds may either pose a threat to public health and safety or commercial interests, or be at risk themselves. The costs associated with this change to our regulations would be very small. This rule is not a major rule under SBREFA (5 U.S.C. 804(2)). It will not have a significant impact on a substantial number of small entities, so a regulatory flexibility analysis of this action is not required. a. This rule will not have an annual effect on the economy of $100 million or more. b. This rule will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. c. This rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ), we have determined the following: a. This rule will not “significantly or uniquely” affect small governments. A small government agency plan is not required. Actions under the regulation will not affect small government activities in any significant way. b. This rule will not produce a Federal mandate of $100 million or greater in any year. It is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Takings In accordance with E.O. 12630, the rule will not have significant takings implications. A takings implication assessment is not required. This rule does not contain a provision for taking of private property. Federalism No significant economic impacts are expected to result from allowing individuals, businesses, or government offices to remove migratory birds from buildings. This rule will not interfere with the States' ability to manage themselves or their funds, nor does it have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. Civil Justice Reform In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Paperwork Reduction Act We examined these regulations under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). There will be no new information collection requirements associated with this change to our regulations. We may not collect or sponsor, nor is a person required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number. National Environmental Policy Act We have analyzed this rule in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and part 516 of the U.S. Department of the Interior Manual (516 DM). A change to our regulations allowing the removal of migratory birds from buildings will not have a significant environmental impact. Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated potential effects on Federally recognized Indian Tribes and have determined that there are no potential effects. This rule will not interfere with the Tribes' ability to manage themselves or their funds or to regulate migratory bird activities on Tribal lands. Energy Supply, Distribution, or Use On May 18, 2001, the President issued E.O. 13211 addressing regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule would affect only removal of birds from structures in limited circumstances, it is not a significant regulatory action under E.O. 12866, and will not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required. Environmental Consequences of the Action The change we are making is to allow people to remove birds protected under the Migratory Bird Treaty Act from buildings. We do not expect significant environmental impacts of this action. *Socioeconomic.* We do not expect the action to have discernible socioeconomic impacts. *Migratory bird populations.* This rule will not alter the take of migratory birds from the wild. It will not change migratory bird populations. *Endangered and Threatened Species.* The regulation is for migratory birds other than threatened or endangered species. It will not affect threatened or endangered species or habitats important to them. Compliance With Endangered Species Act Requirements Section 7 of the Endangered Species Act
(ESA)of 1973, as amended (16 U.S.C. 1531 *et seq.* ), requires that “The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter” (16 U.S.C. 1536(a)(1)). It further states that the Secretary must “insure that any action authorized, funded, or carried out ( is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat” (16 U.S.C. 1536 (a)(2)). The change to our regulations will not affect listed species. Author The author of this rulemaking is Dr. George T. Allen, U.S. Fish and Wildlife Service, Division of Migratory Bird Management, 4401 North Fairfax Drive, Mail Stop 4107, Arlington, VA 22203-1610. List of Subjects in 50 CFR Part 21 Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife. Regulation Promulgation For the reasons stated in the preamble, we amend part 21 of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as follows. PART 21—MIGRATORY BIRD PERMITS 1. The authority citation for part 21 continues to read as follows: Authority: Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 703); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Public Law 106-108, 113 Stat. 1491, Note following 16 U.S.C. 703. 2. Amend § 21.12 by: a. Revising the introductory paragraph and paragraph (a); b. Redesignating paragraphs (b), (c), and
(d)as paragraphs (b)(1), (b)(2), and
(c)and adding a new heading to paragraph (b); c. Adding a heading to newly designated paragraph (c); and d. Adding a new paragraph (d), to read as set forth below. § 21.12 General exceptions to permit requirements. The following persons or entities under the following conditions are exempt from the permit requirements:
(a)*Employees of the Department of the Interior (DOI):* DOI employees authorized to enforce the provisions of the Migratory Bird Treaty Act of July 3, 1918, as amended (40 Stat. 755; 16 U.S.C. 703-(711), may, without a permit, take or otherwise acquire, hold in custody, transport, and dispose of migratory birds or their parts, nests, or eggs as necessary in performing their official duties.
(b)*Employees of certain public and private institutions:*
(1)* * *
(2)* * *
(c)*Licensed veterinarians:*
(d)*General public:* Any person may remove a migratory bird from the interior of a building or structure under certain conditions.
(1)You may humanely remove a trapped migratory bird from the interior of a residence or a commercial or government building without a Federal permit if the migratory bird:
(i)Poses a health threat (for example, through damage to foodstuffs);
(ii)Is attacking humans, or poses a threat to human safety because of its activities (such as opening and closing automatic doors);
(iii)Poses a threat to commercial interests, such as through damage to products for sale; or
(iv)May injure itself because it is trapped.
(2)You must use a humane method to capture the bird or birds. You may not use adhesive traps to which birds may adhere (such as glue traps) or any other method of capture likely to harm the bird.
(3)Unless you have a permit that allows you to conduct abatement activities with a raptor, you may not release a raptor into a building to either frighten or capture another bird.
(4)You must immediately release a captured bird to the wild in habitat suitable for the species, unless it is exhausted, ill, injured, or orphaned.
(5)If a bird is exhausted or ill, or is injured or orphaned during the removal, the property owner is responsible for immediately transferring it to a federally permitted migratory bird rehabilitator.
(6)You may not lethally take a migratory bird for these purposes. If your actions to remove the trapped migratory bird are likely to result in its lethal take, you must possess a Federal Migratory Bird Permit. However, if a bird you are trying to remove dies, you must dispose of the carcass immediately unless you have reason to believe that a museum or scientific institution might be able to use it. In that case, you should contact your nearest Fish and Wildlife Service office or your State wildlife agency about donating the carcass.
(7)For birds of species on the Federal List of Threatened or Endangered Wildlife, provided at 50 CFR 17.11(h), you may need a Federal threatened or endangered species permit before removing the birds (see 50 CFR 17.21 and 50 CFR 17.31).
(8)You must have a permit from your Regional migratory bird permits office to remove a bald eagle or a golden eagle from a building (see 50 CFR Part 22).
(9)Your action must comply with State and local regulations and ordinances. You may need a State, Tribal, or Territorial permit before you can legally remove the bird or birds.
(10)If an active nest with eggs or nestlings is present, you must seek the assistance of a federally permitted migratory bird rehabilitator in removing the eggs or nestlings. The rehabilitator is then responsible for handling them properly.
(11)If you need advice on dealing with a trapped bird, you should contact your closest Fish and Wildlife Service office or your State wildlife agency. Dated: September 4, 2007. David M. Verhey, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E7-19712 Filed 10-4-07; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [I.D. 020607C] RIN 0648-AV10 Atlantic Highly Migratory Species; Atlantic Swordfish Quotas AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: This final rule amends the regulations governing the North and South Atlantic swordfish fisheries to implement two recommendations by the International Commission for the Conservation of Atlantic Tuna (ICCAT)(Recommendations 06-02 and 06-03). These recommendations establish baseline quotas for North and South Atlantic swordfish, respectively, and set caps on underharvest carryover. Additionally, recommendation 06-02 allows a contracting party
(CPC)with a total allowable catch
(TAC)allocation to make a transfer within a fishing year of up to 15 percent of its baseline allocation to other CPCs with TAC allocations, as long as the transfer is conducted in a manner that is consistent with domestic obligations and conservation considerations. This final rule will transfer 15 percent of the North Atlantic swordfish baseline quota into the reserve category which would allow it to be transferred to other CPCs with TAC allocations. In addition, this final rule modifies the North and South Atlantic swordfish quotas for the 2006 fishing year to account for updated landings information from the 2004 and 2005 fishing years. Finally, this final rule includes the option of an internet website as an additional method for complying with the Atlantic Highly Migratory Species
(HMS)Angling or Atlantic HMS Charter/Headboat category(s 24 hour reporting requirement. Currently, reporting is by telephone only. This rule will remain in effect until ICCAT provides new recommendations for the U.S. swordfish fisheries. DATES: This rule is effective on November 5, 2007. ADDRESSES: For copies of the Final Environmental Assessment/Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/FRFA), please write to Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910, or at 301-713-1917 (fax). Copies are also available from the HMS website at *http://www.nmfs.noaa.gov/sfa/hms/* . FOR FURTHER INFORMATION CONTACT: Heather Ann Halter or Karyl Brewster-Geisz by phone: 301-713-2347 or by fax: 301-713-1917. SUPPLEMENTARY INFORMATION: Background The U.S. Atlantic swordfish fishery is managed under the 2006 Consolidated HMS Fishery Management Plan (FMP). Implementing regulations at 50 CFR part 635 are issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 *et seq.* and the Atlantic Tunas Convention Act (ATCA), 16 U.S.C. 971 *et seq.* Regulations issued under the authority of ATCA carry out the recommendations of ICCAT. Currently, baseline quotas for North and South Atlantic swordfish are 2,937.6 metric tons
(mt)dressed weight
(dw)for the North Atlantic and 90.2 mt dw for the South Atlantic. Baseline quotas for the United States are established by implementing recommendations from the International Commission for the Conservation of Atlantic Tunas, or ICCAT. Each fishing year, quotas are adjusted by carrying over the entire under harvest or deducting overharvest from the previous fishing year. Thus, the entire under harvest is added to the next year(s baseline quota. Finally, no additional quota has been added to the reserve category since it was created in 2002 and it continues to decrease each year because 18.8 mt dw is transferred to Canada annually from the reserve. On June 18, 2007 (72 FR 33436), NMFS published a proposed rule that examined alternatives for implementing 2006 ICCAT recommendations 06-02 and 06-03. Among the topics explored in the alternatives were North and South Atlantic swordfish quotas and underharvest carryovers, as well as alternatives exploring mechanisms for a permissible 15 percent North Atlantic baseline quota transfer to other CPCs with TAC allocations. Information regarding these alternatives was provided in the preamble of the proposed rule and is not repeated here. Final Quotas, Underharvest Carryover Caps, and Transfer Allocation for North and South Atlantic Swordfish The final 2007 and 2008 baseline quotas for North and South Atlantic swordfish are 2,937.6 mt dw and 75.2 mt dw, respectively. In addition, final 2007 and 2008 carryover caps will be 50 percent of the original baseline allocation for the North Atlantic (1,468.8 mt dw) and 100 percent of the original baseline allocation for the South Atlantic (75.2 mt dw). The 100 percent cap for the South Atlantic will also apply to 2006 carryover. The final mechanism for possible 15 percent transfer to other CPCs will be placement of 15 percent of the 2007 North Atlantic baseline quota allocation (440.6 mt dw) into the 2007 reserve category. The final North and South Atlantic 2007 and 2008 swordfish quotas, carryover caps, and transfer mechanism to the North Atlantic reserve category are provided in Table 1. These baselines and carryovers will continue until ICCAT issues new recommendations for the United States. Both the North and South Atlantic swordfish fisheries are open unless closed per 50 CFR 635.28(c)(1). Table 1 — Final North and South Atlantic Swordfish Baseline Quotas, Carryover Caps, and North Atlantic Reserve Category Quota North Atlantic Swordfish Quota (mt dw) 2006 2007 2008 Directed Quota 2,554.9 2,114.3 2,133.1 Incidental Quota 300.0 300.0 300.0 Reserve Quota 82.7 523.3 504.5 Baseline Quota 2,937.6 2,937.6 2,937.6 Carryover Cap no cap 1,468.8 1,468.8 South Atlantic Swordfish Quota (mt dw) 2006 2007 2008 Baseline Quota 90.2 75.2 75.2 Carryover Cap 75.2 75.2 75.2 Final Addition to Atlantic HMS Angling or Atlantic HMS Charter/Headboat Category 24 hour reporting requirement NMFS will include the option of an internet website as an additional method for complying with the Atlantic HMS Angling or Atlantic HMS Charter/Headboat category(s 24 hour reporting requirement. Previously, reporting was by telephone only. Response To Comments NMFS conducted three public hearings to receive comments on the proposed rule. The comment period ended on July 18, 2007. Comments on the proposed rule (June 18, 2007; 72 FR 33436) are summarized below, together with NMFS' responses. *Comment 1:* NMFS received several comments in support of the addition of an internet reporting option for the HMS angling and charter/headboat 24 hour reporting requirement. Comments noted that reporting a landing using the internet is very helpful, easy, and is less frustrating than calling in a landing. *Response:* NMFS will implement the internet option for the HMS angling and charter/headboat 24 hour reporting requirement to provide fishermen with more flexibility in satisfying the requirement. Those who prefer to report by phone may still do so, and those that prefer reporting by internet may choose that option in lieu of telephone reporting. *Comment 2:* NMFS received several comments in support of the preferred alternative 1b, following ICCAT recommendations for quotas and underharvest carryover caps. *Response:* Implementation of alternative 1b will establish baseline quotas and carryover caps consistent with ICCAT recommendations 06-02 and 06-03 and the Atlantic Tunas Convention Act. *Comment 3:* NMFS received comments in support of preferred alternative 2b, which will introduce the transfer provision in ICCAT recommendation 06-02 by transfering 15 percent of the 2007 North Atlantic swordfish U.S. baseline quota (440.6 mt dw) into the reserve category which would allow it to be transferred to other CPCs with TAC allocations. Additionally, NMFS received a comment opposing preferred alternative 2b, which will transfer 15 percent of the 2007 North Atlantic swordfish U.S. baseline quota (440.6 mt dw) into the reserve category which would allow it to be transferred to another CPC. This comment favored alternative 2c, which would take the allowable 15 percent transfer (if it were to be made) to another CPC from the directed quota at the time of request. *Response:* NMFS will implement alternative 2b in order to replenish a reserve quota that has not been increased since its creation in 2002 and also to create a reliable directed fishery quota at the start of a given fishing season. If alternative 2c were implemented, a 15 percent transfer (if it were made) out of the directed quota would not allow swordfish vessel owners and directed permit holders to adequately plan for the upcoming fishing year due to sudden directed quota loss. *Comment 4:* NMFS received several comments stating that, if NMFS eventually decides to transfer 15 percent of the North Atlantic swordfish quota to one or more CPCs, NMFS should choose a transfer to Canada over a transfer to Mexico. These statements were due to the belief that Canada(s fishing practices are more environmentally friendly than those of Mexico. In addition, NMFS received a comment opposing any transfer of quota to a CPC at this time. *Response:* NMFS has not, at this time, decided to transfer 15 percent of the North Atlantic swordfish quota to any given CPC. If requested in the future, NMFS would consider implementing the transfer under a separate action. Such an action would consider the ecological and economic impacts of transferring quota to that CPC. This is consistent with ICCAT recommendation 06-02 regarding quota transfer to another CPC, which states that a country which decides to implement the 15 percent quota transfer may do so consistent with domestic obligations and conservation considerations. *Comment 5:* NMFS received comments that Canadian fishermen undergo feast or famine practices in order to catch their full quota at the end of the summer, which drops the U.S. catch. These comments stated that it would be better if NMFS could give Canada the 18.8 mt dw annual transfer a little at a time in order to spread their landings out and prevent these feast or famine practices. *Response:* Under recommendation 06-02, ICCAT provides Canada 18.8 mt dw annually from the U.S. baseline quota. That transfer is for Canada to use as it sees fit. This rulemaking will not modify the 18.8 mt dw annual transfer to Canada nor influence Canadian fishing practices. Changes to the Proposed Rule NMFS did not make any changes from the June 18, 2007, proposed rule (72 FR 33436). Classification NMFS has determined that this action is consistent with the conservation goals of ICCAT, the Magnuson-Stevens Act, ATCA, the Consolidated HMS FMP, and other applicable law. This final rule has been determined to be not significant for purposes of Executive Order 12866. In compliance with section 604 of the Regulatory Flexibility Act, a Final Regulatory Flexibility Analysis
(FRFA)was prepared for this rule. The FRFA analyzes the anticipated economic impacts of the preferred actions and any significant alternatives to the final rule that could minimize economic impacts on small entities. Each of the statutory requirements of Section 604 of the Regulatory Flexibility Act has been addressed, and a summary of the FRFA is below. The full FRFA and analysis of economic and ecological impacts, are available from NMFS (see ADDRESSES ). Section 604(a)(1) of the Regulatory Flexibility Act requires the Agency to state the objective and need for the rule. The objective of this rule is, consistent with the Magnuson-Stevens Act and the Atlantic Tunas Convention Act, to comply with ICCAT recommendations in establishing U.S. quotas, capping the amount of carryover from 2006 for both North and South Atlantic swordfish, and establishing a mechanism for transferring up to 15 percent of the U.S. swordfish allocation to other ICCAT CPCs. NMFS needs to implement this action in order to comply with ICCAT recommendations and the ATCA. Section 604(a)(2) of the Regulatory Flexibility Act requires the Agency to summarize significant issues raised by the public comment in response to the Initial Regulatory Flexibility Analysis (IRFA), a summary of the Agency(s assessment of such issues, and a statement of any changes made as a result of the comments. The IRFA was done as part of the draft EA for the proposed rule of this action. NMFS did not receive any comments specific to the IRFA or the economic impacts of the proposed alternatives. Section 604(a)(3) of the Regulatory Flexibility Act requires the Agency to describe and provide an estimate of the number of small entities to which the rule will apply. This rule could directly affect commercial and recreational swordfish fishermen in the Atlantic Ocean in the United States. The commercial swordfish fishery is composed of fishermen who hold a swordfish directed, incidental, or handgear limited access permit, all of which NMFS considers to be small entities. There are also related industries including processors, bait houses, and equipment suppliers, but these industries are not directly affected by this rule. As of February 2006, there were 365 commercial swordfish permit holders for directed, incidental, and handgear permits. Also as of February 2006, there were 25,238 HMS angling permit holders who could land swordfish recreationally (i.e., not for profit), and 4,173 charter/headboat permit holders authorized to land swordfish. More information regarding the numbers of small entities involved in the swordfish fishery can be found in Chapter 6 of the EA (see ADDRESSES ). Section 604(a)(4) of the Regulatory Flexibility Act requires the Agency to describe the projected reporting, recordkeeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities which would be subject to the requirements of the report or record. None of the alternatives considered for this final rule would result in additional reporting, recordkeeping, and compliance requirements. Section 604(a)(5) of the Regulatory Flexibility Act requires the Agency to describe the steps taken to minimize the significant economic impact on small entities consistent with the stated objectives and applicable statutes. Additionally, the Regulatory Flexibility Act (5 U.S.C. 603(c)(1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are:
(1)establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
(3)use of performance rather than design standards; and
(4)exemptions from coverage for small entities. NMFS considers all permit holders in the swordfish fishery to be small entities. In order to meet the objectives of this final rule, consistent with the Magunson-Stevens Act and ATCA, NMFS cannot exempt small entities or change the reporting requirements only for small entities. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. In addition, none of the alternatives considered would result in additional reporting or compliance requirements (category two above). NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act and ATCA. As described below, NMFS analyzed five different alternatives in this final rulemaking and provides justification for selection of the preferred alternative to achieve the desired objective. The alternatives included: maintaining current baseline quotas for North and South Atlantic swordfish (alternative 1a, no action), implementing North and South Atlantic swordfish quotas and underharvest provisions as outlined in ICCAT recommendations 06-02 and 06-03 (alternative 1b), allocating no additional swordfish quota to the reserve category (alternative 2a, no action), transferring 15 percent (440.6 mt dw) of the 2007 baseline North Atlantic swordfish allocation to the reserve category (alternative 2b), and establishing procedures for possible implementation of the transfer provision outlined in ICCAT recommendation 06-02 (alternative 2c). Implementing North and South Atlantic swordfish quotas and underharvest provisions as outlined in ICCAT recommendations 06-02 and 06-03 (alternative 1b) and transferring 15 percent (440.6 mt dw) of the 2007 baseline North Atlantic swordfish allocation to the reserve category (alternative 2b) are the preferred alternatives. Alternatives Considered for Quotas and Underharvest Carryovers Alternative 1a is considered the no action alternative since it would maintain existing baseline quotas for North and South Atlantic swordfish, as well as carryover entire underharvests in future fishing years (e.g., 2007 and beyond). This alternative is not preferred because it would fail to comply with international obligations under ICCAT and ATCA. Maintaining existing baseline quotas would fail to decrease the South Atlantic recommended baseline quota from 90.2 mt dw to 75.2 mt dw. Furthermore, failing to cap overharvests consistent with ICCAT recommendations 06-02 and 06-03 would result in carryover that would more than double what is recommended by ICCAT. Alternative 1b, the preferred alternative, which will implement North and South Atlantic swordfish quotas and underharvest provisions as outlined in ICCAT recommendations 06-02 and 06-03, complies with ICCAT recommendations. North Atlantic underharvest carryover will be capped at 50 percent of the 2007 and 2008 baseline quota allocations (1,468.8 mt dw). South Atlantic underharvest carryover will be capped at 100 percent of the 2007 and 2008 baseline quota allocations (75.2 mt dw) and South Atlantic underharvest carryover for 2006 will be capped at 100 mt ww (75.2 mt dw). In addition, alternative 2b will allow for 2,022.56 mt dw of the U.S. 2005 North Atlantic underharvest to be redistributed among other CPCs in 2007 (1,011.28 mt dw) and 2008 (1,011.28 mt dw), consistent with ICCAT recommendation 06-02. By applying caps and baseline quotas in ICCAT recommendations 06-02 and 06-03 for 2007, prices for fully realized quota harvests can be calculated in order to compare the application of alternative 1a versus 1b. Application of alternative 1b versus 1a may result in a loss of $45.3 million for the North Atlantic swordfish fishery in 2007 if harvests are fully realized. Application of alternative 1b versus 1a may result in a loss of $0.14 million for the South Atlantic swordfish fishery in 2007 if harvests are fully realized. However, baseline quotas for the North and South Atlantic have not been fully realized in recent years. The pelagic longline fleet has not caught the entire U.S. swordfish quota, causing significant amounts of swordfish quota to be carried over in past fishing years. For example, the amount of total underharvest in the North Atlantic during years 2004-2006 was 3,528.8 mt dw, 4,806.1 mt dw, and 6,905.9 mt dw, respectively. In recent years, there have been no landings of swordfish in the South Atlantic. A reduction in the growth of underharvest carryovers, and the June 7, 2007, final rule (72 FR 31688) to help revitalize the swordfish industry, would increase the ability of the vessel owners and permit holders in the pelagic longline fleet to catch their full quota. In conclusion, maintaining the North Atlantic baseline quota, decreasing the South Atlantic baseline quota, and capping underharvest carryovers in both swordfish fisheries would not have adverse impacts on a large number of small entities. Alternatives Considered for Quota Transfers Alternative 2a is considered the no action alternative since it would maintain the reserve category whereby no new quota allocations would replenish the reserve. This alternative is not preferred because the 18.8 mt dw per year transfer to Canada would eventually deplete the reserve. Consistent with § 635.27(c)(1)(i)(D), the reserve has four stated uses. Quota in the reserve category may be used for inseason adjustments to other fishing categories, to compensate for projected or actual overharvest in any category, for fishery independent research, or for other purposes consistent with management objectives. The status quo alternative does not create any new economic burdens on the North Atlantic commercial swordfish fishery, however, if the reserve were to be completely depleted in future fishing years, its four stated uses could not be implemented. For example, other swordfish quota categories could not be supplemented through transfers from the reserve, overharvests could not be covered, and valuable data could not be obtained by using quota for fishery independent research. Alternative 2b, the preferred alternative, will transfer 15 percent (440.6 mt dw) of the 2007 baseline U.S. North Atlantic swordfish allocation to the reserve category. This will replenish the reserve and make it available for its four stated uses. Alternative 2c would establish procedures for possible implementation of the transfer provision outlined in the 2006 ICCAT recommendation 06-02 to handle transfer requests or offers by other CPCs. This alternative differs from alternative 2b in that 2c would not place 15 percent of the North Atlantic baseline quota directly into the reserve. Rather, if the situation arose for a needed transfer, a transfer of up to 15 percent would be made from the directed quota category. Alternative 2b is preferred over 2c because placing 15 percent of the North Atlantic baseline quota directly into the reserve would replenish the reserve and also create a reliable directed fishery quota at the start of a given fishing season. If 2c were implemented, a 15 percent transfer (if it were made) out of the directed quota may not allow the fishery to adequately prepare for the upcoming year, since the directed quota would suddenly decrease during a season in which a transfer might be made. The industry might prepare and purchase such things as equipment for an upcoming season and lose revenue due to this quota reduction. Alternative 2b would replenish a reserve that would otherwise become depleted in future fishing years through the annual 18.8 mt dw transfer to Canada. This creates four options (previously mentioned) for use of the 15 percent (440.6 mt dw) allocated reserve quota. Placing 15 percent of the 2007 and 2008 baseline quota directly into the reserve would provide for a directed fishery quota that would not be reduced due to an in-season transfer, as well as provide opportunity to cover other U.S. North Atlantic swordfish quota categories should the situation arise. Implementing alternative 2b, transferring 15 percent of the U.S. baseline quota to the reserve, amounts to 3,601.9 mt dw for the North Atlantic directed swordfish fishery and 504.5 mt dw for the reserve during the 2007 fishing year. If alternative 2b is not implemented, the North Atlantic directed swordfish fishery would have a larger quota of 4,042.5 mt dw and a smaller reserve of 63.9 mt dw. The implementation of alternative 2b would therefore result in a potential loss in revenue of $3.7 million to the North Atlantic directed swordfish fishery when compared to the status quo. However, NMFS does not expect fishing effort to increase in the short term to the extent that this loss would be realized. U.S. fishermen have not caught their full swordfish quota since 2000, resulting in large underharvest carryovers which, in turn, made for large adjusted quotas. Therefore, NMFS believes that the caps, and the June 7, 2007, final rule (72 FR 31688) to revitalize the swordfish industry, would help the fishery harvest the swordfish quota without the large carryovers which have occurred in the past. Furthermore, as previously stated, one of the four possible uses of the reserve would be to transfer quota back to the directed swordfish category if needed, which may also prevent this potential economic loss from being realized. Therefore, alternative 2b is preferred over 2c because it minimizes any economic impact and complies with international obligations. List of Subjects in 50 CFR Part 635 Fisheries, Fishing, Management, Reporting and recordkeeping requirements, Treaties. Dated: October 1, 2007. Samuel D. Rauch III Deputy Assistant Administrator for Regulatory Programs,National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 635 is amended as follows: PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority: 16 U.S.C. 971 *et seq.* ; 16 U.S.C. 1801 *et seq.* 2. In § 635.5, paragraph (c)(2) is revised to read as follows: § 635.5 Recordkeeping and reporting.
(c)* * *
(2)The owner, or the owner(s designee, of a vessel permitted, or required to be permitted, in the Atlantic HMS Angling or Atlantic HMS Charter/Headboat category must report all non-tournament landings of Atlantic blue marlin, Atlantic white marlin, and Atlantic sailfish, and all non-tournament and non-commercial landings of North Atlantic swordfish to NMFS by telephone to a number designated by NMFS, or electronically via the internet to an internet website designated by NMFS, or by other means as specified by NMFS, within 24 hours of that landing. For telephone landing reports, the owner, or the owner(s designee, must provide a contact phone number so that a NMFS designee can call the vessel owner, or the owner(s designee, for follow up questions and to confirm the reported landing. Regardless of how submitted, landing reports submitted to NMFS are not complete unless the vessel owner, or the owner(s designee, has received a confirmation number from NMFS or a NMFS designee. 3. In § 635.27, paragraphs (c)(1)(i)(A) and (D), (c)(1)(ii), and (c)(3)(i) and
(ii)are revised to read as follows: § 635.27 Quotas.
(c)* * *
(1)* * *
(i)* * *
(A)A swordfish from the North Atlantic stock caught prior to the directed fishery closure by a vessel for which a directed fishery permit, or a handgear permit for swordfish, has been issued or is required to be issued is counted against the directed fishery quota. The annual fishery quota, not adjusted for over- or underharvests, is 2,937.6 mt dw for each fishing year. After December 31, 2007, the annual quota is subdivided into two equal semi-annual quotas of 1,468.8 mt dw: one for January 1 through June 30, and the other for July 1 through December 31.
(D)A portion of the total allowable catch of North Atlantic swordfish may be held in reserve for inseason adjustments to fishing categories, to compensate for projected or actual overharvest in any category, for fishery independent research, for transfer to another ICCAT contracting party, or for other purposes consistent with management objectives.
(ii)*South Atlantic Swordfish.* The annual directed fishery quota for the South Atlantic swordfish stock is 75.2 mt dw. After December 31, 2007, the annual quota is subdivided into two equal semi-annual quotas of 37.6 mt dw: one for January 1 through June 30, and the other for July 1 through December 31. The entire quota for the South Atlantic swordfish stock is reserved for vessels with pelagic longline gear onboard and that have been issued a directed fishery permit for swordfish. No person may retain swordfish caught incidental to other fishing activities or with other fishing gear in the Atlantic Ocean south of 5 degrees North latitude.
(3)* * *
(i)Except for the carryover provisions of paragraphs (c)(3)(ii) and
(iii)of this section, NMFS will file with the Office of the Federal Register for publication notification of any adjustment to the annual quota necessary to meet the objectives of the Consolidated Highly Migratory Species Fishery Management Plan.
(ii)If consistent with applicable ICCAT recommendations, total landings above or below the specific North Atlantic or South Atlantic swordfish annual quota will be subtracted from, or added to, the following year(s quota for that area. As necessary to meet management objectives, such carryover adjustments may be apportioned to fishing categories and/or to the reserve. Carryover adjustments for the North Atlantic shall be limited to 50 percent of the baseline quota allocation for that year. Carryover adjustments for the South Atlantic shall be limited to 100 mt ww (75.2 mt dw) for that year. Any adjustments to the 12-month directed fishery quota will be apportioned equally between the two semiannual fishing seasons. NMFS will file with the Office of the Federal Register for publication any adjustment or apportionment made under this paragraph. 4. In § 635.28, paragraph (c)(2) is revised to read as follows: § 635.28 Closures.
(c)* * *
(2)*Incidental catch closure.* When the annual incidental catch quota specified in § 635.27(c)(1)(i) is reached, or is projected to be reached, NMFS will file with the Office of the Federal Register for publication notification of closure. From the effective date and time of such notification until additional incidental catch quota becomes available, no swordfish may be landed in an Atlantic coastal state, or be possessed or sold in or from the Atlantic Ocean north of 5° N. lat. unless the directed fishery is open and the appropriate permits have been issued to the vessel. In the event of a directed and incidental North Atlantic swordfish category closure, South Atlantic swordfish may be possessed in the Atlantic Ocean north of 5° N. lat. and/or landed in an Atlantic coastal state on a vessel with longline gear onboard, provided that the harvesting vessel does not fish on that trip in the Atlantic Ocean north of 5° N. lat., the fish were taken legally from waters of the Atlantic Ocean south of 5° N. lat., and the harvesting vessel reports positions with a vessel monitoring system as specified in § 635.69. [FR Doc. E7-19715 Filed 10-4-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070213033-7033-01] RIN 0648-XD14 Fisheries of the Economic Exclusive Zone Off Alaska; Pacific Cod in the Bering Sea and Aleutian Islands AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; modification of a closure. SUMMARY: NMFS is opening directed fishing for Pacific cod by catcher vessels using pot gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to fully use the 2007 total allowable catch
(TAC)of Pacific cod specified for catcher vessels using pot gear in the BSAI. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), October 2, 2007, through 2400 hrs, A.l.t., December 31, 2007. Comments must be received at the following address no later than 4:30 p.m., A.l.t., October 17, 2007. ADDRESSES: You may submit comments, identified by [0648-XD14], by any one of the following methods: • Mail to: P.O. Box 21668, Juneau, AK 99802 • Hand delivery to the Federal Building, 709 West 9th Street, Room 420A, Juneau, Alaska • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* • FAX to 907-586-7557, Attn: Ellen Sebastian • Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area
(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. NMFS closed directed fishing for Pacific cod by catcher vessels using pot gear in the BSAI under § 679.20(d)(1)(iii) on September 28, 2007 (72 FR 56016, October 2, 2007). As of October 1, 2007, approximately 529 metric tons of Pacific cod remain in the 2007 Pacific cod TAC allocated to catcher vessels using pot gear in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C) and (a)(2)(iii)(D), and to fully use the 2007 TAC of Pacific cod specified for catcher vessels using pot gear in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels using pot gear in the BSAI. The opening is effective 1200 hrs, A.l.t., October 2, 2007, through 2400 hrs, A.l.t., December 31, 2007. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of the Pacific cod fishery by catcher vessels using pot gear in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 1, 2007. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher vessels using pot gear in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until October 17, 2007. This action is required by § 679.25 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: October 1, 2007. Emily H. Menashes Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 07-4955 Filed 10-2-07; 1:38 pm]
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  • 33 CFR 165
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 107-295
  • 39 CFR 111
  • 49 CFR 171.7
  • 40 CFR 721
  • 40 CFR 9
  • 40 CFR 707
  • 40 CFR 721.20
  • 40 CFR 721.5
  • 40 CFR 721.10068(b)(2)
  • 40 CFR 85.1703
  • 40 CFR 721.25
  • 40 CFR 721.45(f)
  • 40 CFR 707.60(b)
  • 40 CFR 700
  • 40 CFR 720
  • 40 CFR 749.68
  • 40 CFR 721.45(h)
  • 40 CFR 721.25(a)
  • 40 CFR 700.45(b)(2)(iii)
  • 40 CFR 700.45(b)(1)
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 7 USC 135
  • 15 USC 2001
  • 21 USC 331j
  • 40 CFR 52
  • 40 CFR 93
  • 40 CFR 108
  • 40 CFR 93.112
  • 40 CFR 93.113
  • 40 CFR 93.116
  • 40 CFR 93.123
  • 40 CFR 96
  • 40 CFR 96.304
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