Notices. Direct final rule

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

BILLING CODE 4910-15-M ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2007-0963; A-1-FRL-8522-1] Approval and Promulgation of Air Quality Implementation Plans; Maine; Ozone Maintenance Plans AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: The EPA is approving a State Implementation Plan

(SIP)revision submitted by the State of Maine, that includes four separate 8-hour ozone maintenance plans. The Clean Air Act requires that areas that are designated attainment for the 8-hour ozone standard, and also had been previously designated either nonattainment or maintenance for the 1-hour ozone standard, develop a plan showing how the state will maintain the ozone standard for the area. Maine's maintenance plans include an emissions inventory, a plan for how the state will demonstrate and track progress of continued maintenance of the standard, a commitment to continue ozone monitoring, and a contingency plan that will ensure that any violation of the 8-hour ozone standard is promptly addressed. The intended effect of this action is to approve these four maintenance plans into the Maine SIP. This action is being taken under the Clean Air Act. DATES: This direct final rule will be effective March 31, 2008, unless EPA receives adverse comments by February 28, 2008. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R01-OAR-2007-0963 by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail:* *arnold.anne@epa.gov* 3. *Fax:*

(617)918-0047. Mail: “Docket Identification Number EPA-R01-OAR-2007-0963,” Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (mail code CAQ), Boston, MA 02114-2023. 4. *Hand Delivery or Courier.* Deliver your comments to: Anne Arnold, Manager, Air Quality Planning Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. 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 legal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R01-OAR-2007-0963. 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, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100, Boston, MA. EPA requests that if at all possible, you contact the contact 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 legal holidays. In addition, copies of the state submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the State Air Agency; the Bureau of Air Quality Control, Department of Environmental Protection, First Floor Tyson Building, Augusta Mental Health Institute Complex, Augusta, ME 04333-0017. FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, One Congress Street, Suite 1100 (CAQ), Boston, MA 02114-2023, telephone number

(617)918-1664, fax number

(617)918-0664, e-mail *Burkhart.Richard@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Organization of this document. The following outline is provided to aid in locating information in this preamble. I. What Action Is EPA Taking? II. What Is a Section 110(a)(1) Maintenance Plan? III. How Has Maine Addressed the Components of a Section 110(a)(1) 8-Hour Ozone Maintenance Plan? IV. Final Action V. Statutory and Executive Order Reviews I. What Action Is EPA Taking? EPA is approving a State Implementation Plan

(SIP)revision submitted by the State of Maine on August 7, 2006. The SIP revision consists of the Clean Air Act (CAA or Act) Section 110(a)(1) 8-hour ozone maintenance plans for four areas in Maine. Maine held a public hearing on the proposed SIP revision on July 6, 2006. The maintenance plans demonstrate how the state intends to maintain the 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. These plans replace the existing ozone maintenance plan for the former Hancock and Waldo Counties 1-hour marginal ozone nonattainment area. That plan had been included as part of the redesignation request for this area as required under 175A of the Clean Air Act. (See 62 FR 9081; February 28, 1997.) Maine has four areas that are required to submit a CAA Section 110(a)(1) maintenance plan. This requirement applies to areas that are designated as attainment/unclassifiable for the 8-hour ozone standard and also had a designation of either nonattainment or attainment with an approved maintenance plan for the 1-hour ozone standard as of June 15, 2004 (the effective date of the 8-hour ozone standard designation for these areas). 1 In Maine, these areas are: 1 See 69 FR 23857. Area 1—Portions of York and Cumberland Counties; Area 2—Portions of Androscoggin and all of Kennebec County; Area 3—Portions of Knox and Lincoln Counties; and Area 4—Portions of Hancock and Waldo Counties. The exact cites and towns in these areas are listed in the Technical Support Document

(TSD)for this action, and in the Maine submittal. The TSD and Maine's submittal are available in the docket for this action or from the contact listed in the FOR FURTHER INFORMATION CONTACT section of this action. II. What Is a Section 110(a)(1) Maintenance Plan? Section 110(a)(1) of the CAA requires, in part, that states submit to EPA plans to maintain any NAAQS promulgated by EPA. EPA interprets this provision to require that areas that were either nonattainment or maintenance areas for the 1-hour ozone NAAQS, but attainment for the 8-hour ozone NAAQS, submit a plan to demonstrate the continued maintenance of the 8-hour ozone NAAQS. EPA established June 15, 2007, three years after the effective date of the initial 8-hour ozone designations, as the deadline for submission of plans for these areas. On May 20, 2005, EPA issued guidance 2 that applies, in part, to areas that are designated attainment/unclassifiable for the 8-hour ozone standard and either have an approved 1-hour ozone maintenance plan or were designated nonattainment of the 1-hour ozone standard. The purpose of the guidance is to assist the states in the development of a SIP which addresses the maintenance requirements found in Section 110(a)(1) of the CAA. There are five components of a Section 110(a)(1) maintenance plan which are:

(1)An attainment inventory, which is based on actual typical summer day emissions of volatile organic compounds

(VOCs)and oxides of nitrogen (NO X ) for a ten-year period from a base year as chosen by the state;

(2)a maintenance demonstration which shows how the area will remain in compliance with the 8-hour ozone standard for 10 years after the effective date of designations (June 15, 2004);

(3)a commitment to continue to operate air quality monitors;

(4)a contingency plan that will ensure that a violation of the 8-hour ozone NAAQS is promptly addressed; and

(5)an explanation of how the state will track the progress of the maintenance plan. 2 “Maintenance Plan Guidance Document for Certain 8-hour Ozone Areas Under Section 110(a)(1) of Clean Air Act,” EPA memorandum dated May 20, 2005, from Lydia Wegman to Air Division Directors. III. How Has Maine Addressed the Components of a Section 110(a)(1) 8-Hour Ozone Maintenance Plan? EPA has determined that the ME DEP (Maine Department of Environmental Protection) 8-hour ozone maintenance plans address all of the necessary components of a Section 110(a)(1) 8-hour ozone maintenance plan as discussed below. *A. Emissions Inventory:* An emissions inventory is an itemized list of emission estimates for sources of air pollution in a given area for a specified time period. ME DEP has provided a comprehensive and current emissions inventory for ozone precursors (NO X and VOCs) in the four areas. ME DEP uses 2002 as the base year from which it projects emissions. The submittal also includes an explanation of the methodology used for determining the anthropogenic emissions (point, area, and mobile sources) in the maintenance areas. The inventory is based on emissions for a typical ozone season day. The term “typical” refers to emissions expected on a typical weekday during the months where ozone concentrations are typically the highest. *B. Maintenance Demonstration and Tracking Progress:* With regard to demonstrating continued maintenance of the 8-hour ozone standard, ME DEP projects that the total emissions from the four maintenance areas will decrease during the ten-year maintenance period. ME DEP has projected emissions from 2002 until 2016. The projected trend in emissions is downward. This clearly demonstrates that the 8-hour ozone standard will be maintained for the ten year period between 2004 and 2014, which is the required test, even though a specific inventory was not prepared for 2014. Tables 1 through 4 show the total VOC and NO X emissions for each of the four maintenance areas in Maine for the base year (2002), an interim year (2009), and a final year (2016). 3 More detailed emissions tables can be found in the TSD for this action and the ME DEP submittal. The trend in emissions is downward, for each pollutant, in each area. As such, the plan demonstrates that, from an emissions projections standpoint, emissions are projected to decrease. 3 It should be noted that the emissions shown in these tables are for the entire two counties named, rather than the somewhat smaller maintenance area, due to the difficulty of parsing out inventory data to a sub-county basis. This difference is not considered significant, and does not affect the downward trend shown in the emissions. Table 1.—Maintenance Area 1—York and Cumberland County [Emissions expressed in tons per summer week day] Year 2002 VOC 2002 NO X 2009 VOC 2009 NO X 2016 VOC 2016 NO X Total 80.191 83.495 65.290 53.028 62.092 36.499 Table 2.—Maintenance Area 2—Androscoggin and Kennebec County [Emissions expressed in tons per summer week day] Year 2002 VOC 2002 NO X 2009 VOC 2009 NO X 2016 VOC 2016 NO X Total 31.820 32.322 25.430 21.042 23.405 13.608 Table 3.—Maintenance Area 3—Knox and Lincoln County [Emissions expressed in tons per summer week day] Year 2002 VOC 2002 NO X 2009 VOC 2009 NO X 2016 VOC 2016 NO X Total 18.417 18.128 15.827 13.393 15.060 11.661 Table 4.—Maintenance Area 4—Hancock and Waldo County [Emissions expressed in tons per summer week day] Year 2002 VOC 2002 NO X 2009 VOC 2009 NO X 2016 VOC 2016 NO X Total 24.034 18.355 18.887 11.103 17.143 7.426 It is important to note that the formation of ozone is dependent on a number of variables which cannot be estimated using only emissions growth and reduction calculations. These variables include, among others, weather and the transport of ozone precursors from outside the maintenance area. In its submittal, ME DEP has indicated that the state will track the progress of the maintenance plans by updating the emissions inventory for the four areas approximately every three years. The emissions inventory update will include point, area, and mobile source emissions. Information from these future updates will be compared with the 2002 inventory data to track maintenance of the standard. *C. Ambient Monitoring:* With regard to the ambient air monitoring component of a maintenance plan, Maine's submittal describes the ozone monitoring network in Maine and commits to continue operating air quality monitors in accordance with 40 CFR Part 58 to verify maintenance of the 8-hour ozone standard. If any changes to the monitoring locations become necessary, Maine commits to working with EPA to ensure that the adequacy of the monitoring network is maintained. Based on ozone data from 2006, all of Maine meets the 8-hour ozone standard. Furthermore, preliminary ozone data for 2007 shows that all of Maine continues to meet this standard. *D. Contingency Measures:* EPA interprets Section 110(a)(1) of the CAA to require that the state develop a contingency plan that will ensure that any violation of a NAAQS is promptly corrected. Therefore, as required by Section 110(a)(1) of the Act, Maine has listed possible contingency measures in the event of a future ozone air quality problem. At the conclusion of each ozone season, the Maine DEP will evaluate whether the design value for each of the maintenance areas meets the 8-hour ozone standard. 4 If the design value for an area does not meet the standard, the DEP will evaluate the potential causes of this design value increase. The DEP will examine whether this increase is due to an increase in local in-state emissions or an increase in upwind out-of-state emissions. If an increase in in-state emissions is determined to be a contributing factor to the design value increase, Maine will evaluate the projected in-state emissions for the relevant maintenance area for the ozone season in the following year. If in-state emissions are not expected to satisfactorily decrease in the following ozone season in order to mitigate the violation, Maine will implement one or more of the contingency measures listed in the submittal, or substitute a new VOC or NO X control measures to achieve additional in-state emission reductions. The contingency measures(s) will be selected by the Governor, or the Governor's designee, within 6 months of the end of the ozone season for which contingency measures have been determined necessary. Further details on the types of possible control measures to be used as contingencies can be found in the TSD and the Maine submittal. Maine's submittal satisfies EPA's contingency measure requirements. 4 The design value at an ozone monitor is the 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration measured at that monitor. The design value for an area is the highest design value recorded at any monitor in the area. IV. Final Action EPA is approving into the Maine SIP the Clean Air Act Section 110(a)(1) 8-hour ozone maintenance plans for the four areas in Maine that are required to have such plans. These areas are: Portions of York and Cumberland Counties; portions of Androscoggin and all of Kennebec County; portions of Knox and Lincoln Counties; and portions of Hancock and Waldo Counties. The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment 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 relevant adverse comments be filed. This rule will be effective March 31, 2008 without further notice unless the Agency receives relevant adverse comments by February 28, 2008. If the EPA receives such comments, then EPA will publish a notice 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. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on March 31, 2008 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. V. 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), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “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.* ). The Congressional Review Act, 5 U.S.C. section 801, *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 31, 2008. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: January 16, 2008. Robert W. Varney, Regional Administrator, EPA New England. Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart U—Maine 2. Section 52.1023 is amended by adding paragraph

(i)to read as follows: § 52.1023 Control strategy: Ozone.

(i)Approval: EPA is approving the 110(a)(1) 8-hour ozone maintenance plans in the four areas of the state required to have a 110(a)(1) maintenance plan for the 8-hour ozone National Ambient Air Quality Standard. These areas are as follows: portions of York and Cumberland Counties; portions of Androscoggin County and all of Kennebec County; portions of Knox and Lincoln Counties; and portions of Hancock and Waldo Counties. These maintenance plans were submitted to EPA on August 3, 2006. [FR Doc. E8-1416 Filed 1-28-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2007-0024; FRL-8519-4] Approval and Promulgation of Air Quality Implementation Plans; Michigan; Oxides of Nitrogen Regulations, Phase II AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: The EPA is approving Michigan's oxides of nitrogen (NO X ) rules which satisfy the requirements of EPA's NO X SIP Call Phase II Rule (the Phase II Rule). We are approving these regulations based on Michigan's demonstration that they will result in the achievement of the Phase II budget through source compliance with rules affecting stationary internal combustion

(IC)engines which are identified in the NO X plan submittal. Limiting NO X emissions from IC engines will enable the State to meet the Phase II incremental difference of 1,033 tons during the ozone season, thereby improving air quality and protecting the health of Michigan citizens. DATES: This direct final will be effective March 31, 2008, unless EPA receives adverse comments by February 28, 2008. If adverse comments are received, EPA will publish a timely withdrawal of the direct final in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2007-0024, by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail:* *mooney.john@epa.gov.* 3. *Fax:*

(312)886-5824. 4. *Mail:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 5. *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2007-0024. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone Douglas Aburano, Engineer, at

(312)353-6960 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)353-6960, *aburano.douglas@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows: I. What should I consider as I prepare my comments for EPA? II. Background III. Who is affected by the new rule and the amended rules? IV. What does approval of this rule accomplish? V. How are owners and operators expected to comply with the new requirement? VI. What action is EPA taking today? VII. Statutory and Executive Order Reviews I. What should I consider as I prepare my comments for EPA? When submitting comments, remember to: 1. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). 2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. 3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. 4. Describe any assumptions and provide any technical information and/or data that you used. 5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. 6. Provide specific examples to illustrate your concerns, and suggest alternatives. 7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. 8. Make sure to submit your comments by the comment period deadline identified. II. Background On October 27, 1998 (63 FR 57356), EPA issued the NO X SIP Call, which required 22 states, including Michigan, to prepare plans to reduce the transport of ozone throughout the eastern part of the United States. This was to be accomplished by reducing emissions of NO X from selected source categories, primarily major fuel burning sources, using available cost-effective measures. The rule established a cap on emissions of NO X from each state. States had flexibility in determining which fuel burning sources were to be included in their rules. For the most part, states targeted NO X reductions from electric utilities and other large industrial boilers, cement kilns, and IC engines as sources which could be controlled in a cost-effective manner. Background information in this regard is available from documents prepared by EPA, and can be found at *http://www.epa.gov/ttn/rto/otag/index.html.* Some states and industry challenged the rule. In *Michigan* v. *EPA* , 213 F.3d 663 (DC Cir. 2000), the Court largely upheld EPA's rulemaking. It did, however, remand a portion of the rule concerning IC engines to EPA for further notice and public comment. Subsequent to the Court's decision, EPA proceeded initially with rules concerning electric generating units (EGU), industrial boilers (non-EGU) and cement kilns as Phase I sources. The IC engines fell into the Phase II group, to be addressed at a later date. Michigan adopted its Phase I rules and submitted them to EPA. We conditionally approved them on April 16, 2004 (69 FR 20548) and finally approved them on May 4, 2005 (70 FR 23029). On April 21, 2004 (69 FR 21603), EPA issued the Phase II Rule. It required most states with Phase I budget programs to submit a Phase II plan to achieve incremental reductions not addressed by Phase I rules. The Phase II Rule also identified the additional NO X budget reductions (incremental reductions) that states would have to achieve by regulating large (greater than one ton per day emissions) IC engines. EPA calculated the amount of incremental reductions required by re-calculating the overall budget to reflect a control level of 82 percent from natural gas-fired lean-burn IC engines with greater than one ton per day NO X emissions. MDEQ drafted the new rule (R 336.1818 Emission limitations for stationary internal combustion engines, also known as Rule 818) based on guidance from EPA dated September 19, 2004, which contained an example model rule. The public process for Rule 818 started on April 1, 2006 when the rule was made available for public comment in the Michigan State Register. On April 3, 2006, notices that the rule was available for public comment were published in four newspapers throughout Michigan. Both the notices in the Michigan State Register and the newspapers indicated that a public hearing would be held on the rule on May 9, 2006. On December 22, 2006, the Michigan Department of Environmental Quality

(MDEQ)submitted its Phase II rules to EPA. MDEQ sent additional follow-up information addressing the budget demonstration for this source category in a March 12, 2007 letter requesting EPA approval. Because Michigan adopted EPA's model rule in which was used to calculate the state's Phase II budget, it follows that Michigan's Phase II budget will be met. In the Phase II Rule, EPA calculated the 2007 base year emissions inventory from which Michigan needed additional reductions of 1,033 tons per ozone season. EPA based the calculation upon achieving an 82 percent reduction at all IC engines in Michigan with greater than one ton per day of NO X emissions. III. Who is affected by the new rule and the amended rules? Rule 818 applies only in the fine grid portion of Michigan, as this is the only portion of Michigan where the NO X SIP Call (both Phases I and II) applies (see 69 FR 21627-8). Michigan's fine grid includes the following counties: Allegan, Barry, Bay, Berrien, Branch, Calhoun, Cass, Clinton, Eaton, Genesee, Gratiot, Hillsdale, Ingham, Ionia, Isabella, Jackson, Kalamazoo, Kent, Lapeer, Lenaee, Livingston, Macomb, Mecosta, Midland, Monroe, Montcalm, Muskegon, Newaygo, Oakland, Oceana, Ottawa, Saginaw, Saint Clair, Saint Joseph, Sanilac, Shiawassee, Tuscola, Vanburen, Washtenaw and Wayne. Rule 818 applies to any person who owns or operates a large stationary reciprocating IC engine and other smaller stationary internal combustion engines that are included in a compliance plan. A large IC engine is defined as an engine that emits more than one ton of NO X per ozone season day, based on operation during the 1995 ozone season. IV. What does approval of this rule accomplish? EPA published the incremental budget for affected states including Michigan in the April 21, 2004, **Federal Register** (69 FR 21604). The State's budget demonstration shows that the State will be able to reduce emissions of NO X to meet the Phase II incremental difference of 1,033 tons of NO X for the ozone season. Approval of Rule 818 will provide a means by which the State of Michigan will meet the required reductions of NO X emissions from IC engines during the ozone season. The State rule affects NO X SIP Call IC engines, as well as any other stationary internal combustion engine subject to NO X control in the State's rule, within Michigan's fine grid. The emission reductions for some large engines will be permanent and year-round resulting from low emission combustion measures retrofitted to existing engines. Low emission combustion measures cannot be cycled off once the changes are made to the engine. The combustion control technology is a permanent, physical change to the design and operation of the engine which, when implemented, is expected to reduce emissions of NO X year-round. The State's rules include provisions which the source must follow to demonstrate compliance with the rules. EPA expects environmental benefits and health implications to be permanent. V. How are owners and operators expected to comply with the new requirement? The State Rule 818 includes a requirement that an owner or operator of a large IC engine shall not operate an affected engine during the ozone period, unless there is a compliance plan which meets the requirements of the rule. Owners and operators of subject large IC engines were required to submit compliance plans to the State by October 1, 2006, and the rules prohibit operation of affected engines after May 1, 2007, except in compliance with the requirements. Included in the compliance plan is a requirement that the projected NO X emissions from the engine, in grams per break horsepower-hour, be included in a federally enforceable permit. This information will enable the State to determine if reductions from the covered sources should meet the Phase II budget increment. The failure of a source to meet the required NO X reductions is a violation of the provisions of the permit. The State of Michigan is expected to enforce non-compliance with its rules by reviewing monitoring and testing information submitted by the owners and operators of the affected engines. VI. What action is EPA taking today? EPA is approving Rule 818 submitted by Michigan. We are taking this action because we have determined that the rule satisfies the requirements of the Clean Air Act and the NO X SIP Call Phase II rules. The State has shown, through its budget demonstration, that it can achieve the Phase II budget increment through source compliance with the State's rules affecting IC engines and the State's permitting program. Meeting the Phase II budget increment and the Phase I increment means the State will meet its total overall ozone season NO X budget and bring about reductions in ozone concentrations in the State and downwind from Michigan. VII. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ). Regulatory Flexibility Act This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, *et seq.* ). Unfunded Mandates Reform Act Because this rule proposes to approve 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). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA do not apply. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements. Dated: January 11, 2008. Gary Gulezian, Acting Regional Administrator, Region 5. 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 X—Michigan 2. In § 52.1170, the table in paragraph

(c)entitled “EPA—Approved Michigan Regulations” is amended by adding an entry in Part 8 for “R 336.1818” to read as follows: § 52.1170 Identification of plan.

(c)* * * EPA-Approved Michigan Regulations Michigan citation Title State effective date EPA approval date Comments * * * * * * * Part 8. Emission Limitations and Prohibitions—Oxides of Nitrogen * * * * * * * R 336.1818 Emission limitations for stationary internal combustion engines 11/20/06 1/29/08 [Insert page number where the document begins] * * * * * * * [FR Doc. E8-1415 Filed 1-28-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0445; FRL-8348-8] Acephate, Fenbutatin-Oxide (Hexakis), MCPA, Pyrethrins, and Triallate; Tolerance Actions AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is revoking certain tolerances for the insecticides acephate and pyrethrins. Also, EPA is modifying certain tolerances for the insecticides acephate and pyrethrins. In addition, EPA is establishing new tolerances for the herbicides MCPA and triallate, and the insecticides fenbutatin-oxide (hexakis) and pyrethrins. The regulatory actions finalized in this document are in follow-up to the Agency's reregistration program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and tolerance reassessment program under the Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(q). DATES: This regulation is effective January 29, 2008. Objections and requests for hearings must be received on or before March 31, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification

(ID)number EPA-HQ-OPP-2007-0445. 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. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is

(703)305-5805. FOR FURTHER INFORMATION CONTACT: Jane Smith, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(703)308-0048; e-mail address: *smith.jane-scott@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II.A. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the **Federal Register** listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0445 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before March 31, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2007-0445, by one of the following methods. • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs

(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is

(703)305-5805. II. Background A. What Action is the Agency Taking? In the **Federal Register** of August 8, 2007 (72 FR 44439) (FRL-8138-8), EPA issued a proposal to revoke, modify, and establish specific tolerances for residues of the herbicides MCPA and triallate; and the insecticides acephate, fenbutatin-oxide (hexakis), and pyrethrins. Also, the proposal of August 8, 2007 provided a 60-day comment period which invited public comment for consideration and for support of tolerance retention under FFDCA standards. In this final rule, EPA is revoking, modifying, and establishing specific tolerances for residues of acephate, fenbutatin-oxide (hexakis), MCPA, pyrethrins, and triallate in or on commodities listed in the regulatory text of the proposal published August 8, 2007. EPA is finalizing these tolerance actions in order to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of the Food Quality Protection Act (FQPA). The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision

(RED)and Report of the Food Quality Protection Act

(FQPA)Tolerance Reassessment Progress and Risk Management Decision

(TRED)for the active ingredient. REDs and TREDs recommend certain tolerance actions to be implemented to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone: 1

(800)490-9198; fax: 1

(513)489-8695; internet at * http://www.epa.gov/ ncepihom/ * and from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161; telephone: 1

(800)553-6847 or

(703)605-6000; internet at: *http://www.ntis.gov/* . Electronic copies of REDs and TREDs are available on the Internet and in the public dockets EPA-HQ-OPP-2007-0445 and EPA-HQ-OPP-2004-0154 (fenbutatin-oxide/hexakis), EPA-HQ-OPP-2004-0156 (MCPA), EPA-HQ-OPP-2005-0043 (pyrethrins), and EPA-HQ-OPP-2006-0586 (triallate) at *http://www.regulations.gov and http:// www.epa.gov/pesticides/reregistration/status.htm* . In this final rule, EPA is revoking certain tolerances and tolerance exemptions because these specific tolerances and exemptions correspond to uses no longer current or registered under FIFRA in the United States. The tolerances revoked by this final rule are no longer necessary to cover residues of the relevant pesticides in or on domestically treated commodities or commodities treated outside but imported into the United States. It is EPA's general practice to revoke those tolerances and tolerance exemptions for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance or tolerance exemption to cover residues in or on imported commodities or legally treated domestic commodities. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Generally, EPA will proceed with the revocation of these tolerances on the grounds discussed in Unit II.A. if one of the following conditions applies: 1. Prior to EPA's issuance of a section 408(f) order requesting additional data or issuance of a section 408(d) or

(e)order revoking the tolerances on other grounds, commenters retract the comment identifying a need for the tolerance to be retained. 2. EPA independently verifies that the tolerance is no longer needed. 3. The tolerance is not supported by data that demonstrate that the tolerance meets the requirements under FQPA. This final rule does not revoke those tolerances for which EPA received comments stating a need for the tolerance to be retained. In response to the proposal published in the **Federal Register** of August 8, 2007 (72 FR 44439), EPA received comments during the 60-day public comment period, as follows: *General* . Comment by Pat Duggan, Editor of the Pesticide Chemical News Guide. The commenter questions why the Agency is retaining the postharvest designation on many of the pyrethrin tolerances when in a previous notice for the chemical thiophanate-methyl it was stated that “the Agency has determined that the timings of treatment should not be included as part of these tolerances because the enforcement agency analyzing samples would not know whether a commodity bore residues resulting from a seed treatment.” *Agency Response* . Currently, residues of pyrethrin are regulated in two sections of the 40 CFR part 180. Residues of pyrethrins resulting from preharvest applications are regulated under the exemption in 40 CFR 180.905(a)(6). Residues of pyrethrins resulting from postharvest applications are regulated by tolerances in 40 CFR 180.128. Since there is an exemption in place for pyrethrins, there are deficiencies in the residue data used to support some tolerances. As part of the reregistration decision, the residue studies that were not previously conducted on crop groups and other commodities are being required and/or are underway. Although there are some residue data deficiencies, EPA was able to make a safety finding using conservative assumptions in the risk assessment, which indicated no dietary risks, and to consider the tolerances reassessed. Therefore, the Agency is retaining the postharvest terminology on an *interim basis* until these data for preharvest uses are received from the registrants and to prevent confusion in the 40 CFR part 180 between § 180.905(a)(6) and § 180.128 (unlike thiophanate-methyl which appears in only one section of the CFR.) Once the preharvest data are evaluated, and the Agency confirms that the tolerances in § 180.128 are reflective of the pre- and postharvest residue levels, the Agency intends to remove the postharvest designation to be consistent with current Agency practice. The Agency did not receive comments on the following chemicals: acephate, fenbutatin-oxide (hexakis), MCPA, and triallate. Therefore, the Agency is finalizing, with the exception of the chlorpyrifos and metolachlor tolerances, the amendments proposed in the **Federal Register** of August 8, 2007 (72 FR 44439) (FRL-8138-8). The Agency received comments on chlorpyrifos and metolachlor which require additional time to address. The Agency will publish the response to comment and final tolerance rule for chlorpyrifos and metolachlor in the future. For a detailed discussion of the Agency's rationale for the establishments, revocations, and modifications to the tolerances, refer to the August 8, 2007 proposed rule. B. What is the Agency's Authority for Taking this Action? EPA may issue a regulation establishing, modifying, or revoking a tolerance under FFDCA section 408(e). In this final rule, EPA is establishing, modifying, and revoking tolerances to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes, and as follow-up on canceled uses of pesticides. As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standards under FQPA. The safety finding determination is found in detail in each RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs and TREDs are available as provided in Unit II.A. EPA has issued post-FQPA REDs for pyrethrins, MCPA, triallate, and TREDs for acephate and fenbutatin-oxide whose REDs were completed prior to FQPA. REDs and TREDs contain the Agency's evaluation of the data base for these pesticides, including statements regarding additional data on the active ingredients that may be needed to confirm the potential human health and environmental risk assessments associated with current product uses, and REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FQPA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs, that are made final in this document, do not need such assessment when the tolerances are no longer necessary. EPA's general practice is to propose revocation of tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse. When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, the Agency gives consideration to possible pesticide residues in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, then tolerances do not need to be established for these commodities (40 CFR 180.6(b) and 180.6(c)). C. When Do These Actions Become Effective? These actions become effective on the date of publication of this final rule in the **Federal Register** . The tolerances revoked in this rule are associated with uses that have been canceled for several years. The Agency believes that treated commodities have had sufficient time for passage through the channels of trade. Any commodities listed in the regulatory text of this document that are treated with the pesticides subject to this final rule, and that are in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this section, any residues of these pesticides in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that: 1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA. 2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from a tolerance. Evidence to show that food was lawfully treated may include records that verify the dates that the pesticide was applied to such food. III. Are the Actions Consistent with International Obligations? The tolerance revocations in this final rule are not discriminatory and are designed to ensure that both domestically produced and imported foods meet the food safety standard established by FFDCA. The same food safety standards apply to domestically produced and imported foods. In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue levels

(MRLs)established by the Codex Alimentarius Commission, as required by section 408(b)(4) of the FFDCA. The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level in a notice published for public comment. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs and TREDs, and in the Residue Chemistry document which supports the RED and TRED, as mentioned in Unit II.A. Specific tolerance actions in this final rule and how they compare to Codex MRLs (if any) are discussed in Unit II.A. IV. Statutory and Executive Order Reviews In this final rule, EPA is establishing tolerances under FFDCA section 408(e), and modifying and revoking specific tolerances established under FFDCA section 408. The Office of Management and Budget

(OMB)has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866 due to its lack of significance, this final rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995

(UMRA)(Public Law 104-4). Nor does it require any special considerations as required by Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any other Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601 *et seq.* ), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published on May 4, 1981 (46 FR 24950) and on December 17, 1997 (62 FR 66020), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. Taking into account this analysis, and available information concerning the pesticides listed in this final rule, the Agency hereby certifies that this action will not have a significant negative economic impact on a substantial number of small entities. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. (This Agency document is available in the docket of this final rule). Furthermore, for the pesticides named in this final rule, the Agency knows of no extraordinary circumstances that exist as to the present proposal that would change EPA's previous analysis. Any comments about the Agency's determination should be submitted to EPA along with comments on the proposal, and will be addressed prior to issuing a final rule. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this final rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This final rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this final rule. List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: January 17, 2008. Debra Edwards, Director, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.108 is amended by revising paragraph (a)(1), paragragh (a)(2) introductory text, and

(c)to read as follows: § 180.108 Acephate; tolerances for residues.

(a)*General* .

(1)Tolerances are established for residues of acephate *per se* ( *O* , *S* -dimethyl acetylphosphoramidothioate) in or on the following food commodities 1 : Commodity 1 Parts per million Bean, dry, seed 3.0 Bean, succulent 3.0 Brussels sprouts 3.0 Cattle, fat 0.1 Cattle, meat 0.1 Cattle, meat byproducts 0.1 Cauliflower 2.0 Celery 10 Cotton, hulls 1.0 Cotton, meal 1.0 Cotton, undelinted seed 0.5 Cranberry 0.5 Egg 0.1 Goat, fat 0.1 Goat, meat 0.1 Goat, meat byproducts 0.1 Hog, fat 0.1 Hog, meat 0.1 Hog, meat byproducts 0.1 Horse, fat 0.1 Horse, meat 0.1 Horse, meat byproducts 0.1 Lettuce, head 10 Milk 0.1 Peanut 0.2 Pepper 4.0 Peppermint, tops 27 Poultry, fat 0.1 Poultry, meat 0.1 Poultry, meat byproducts 0.1 Sheep, fat 0.1 Sheep, meat 0.1 Sheep, meat byproducts 0.1 Spearmint, tops 27 Soybean, seed 1.0 1 Residues of the acephate metabolite, methamidophos, are regulated under 40 CFR 180.315

(2)A food tolerance of 0.02 ppm is established for residues of acephate *per se* ( *O* , *S* -dimethyl acetylphosphoramidothioate) as follows:

(c)*Tolerances with regional registration* . Tolerances with regional registration, as defined in § 180.1(m), are established for residues of acephate *per se* ( *O* , *S* -dimethyl acetylphosphoramidothioate) in or on the following food commodities: Commodity Parts per million Nut, macadamia 0.05 3. Section 180.128 is amended by revising paragraph

(a)to read as follows: § 180.128 Pyrethrins; tolerances for residues.

(a)*General* .

(1)Tolerances for residues of the insecticide pyrethrins ((1S)-2-methyl-4-oxo-3-(2Z)-2,4-pentadienylcyclopenten-1-yl (1R,3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (pyrethrin 1), (1S)-2-methyl-4-oxo-3-(2Z)-2,4-pentadienyl-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropane-carboxylate (pyrethrin 2), (1S)-3-(2Z)-2-butenyl-2-methyl-4-oxo-2-cyclopenten-1-yl (1R,3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (cinerin 1), (1S)-3-(2Z)-2-butenyl-2-methyl-4-oxo-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropanecarboxylate (cinerin 2), (1S)-2-methyl-4-oxo-3-(2Z)-2-pentenyl-2-cyclopenten-1-yl (1R, 3R)-2,2-dimethyl-3-(2-methyl-1-propenyl)cyclopropanecarboxylate (jasmolin 1), and (1S)-2-methyl-4-oxo-3-(2Z)-pentenyl-2-cyclopenten-1-yl (1R,3R)-3-[(1E)-3-methoxy-2-methyl-3-oxo-1-propenyl]-2,2-dimethylcyclopropanecarboxylate (jasmolin 2)), the insecticidally active principles of Chrysanthemum cinerariaefolium, which are measured as cumulative residues of pyrethrin 1, cinerin 1, and jasmolin 1 are not to exceed the following: Commodity Parts per million Almond, postharvest 1.0 Apple, postharvest 1.0 Barley, grain, postharvest 3.0 Bean, succulent, postharvest 1.0 Birdseed, mixtures, postharvest 3.0 Blackberry, postharvest 1.0 Blueberry, postharvest 1.0 Boysenberry, postharvest 1.0 Buckwheat, grain, postharvest 3.0 Cacao bean, roasted bean, postharvest 1.0 Cattle, fat 1.0 Cattle, meat 0.05 Cattle, meat byproducts 0.05 Cherry, sweet, postharvest 1.0 Cherry, tart, postharvest 1.0 Coconut, copra, postharvest 1.0 Corn, field, grain, postharvest 3.0 Corn, pop, grain, postharvest 3.0 Cotton, undelinted seed, postharvest 1.0 Crabapple, postharvest 1.0 Currant, postharvest 1.0 Dewberry, postharvest 1.0 Fig, postharvest 1.0 Flax, seed, postharvest 1.0 Goat, fat 1.0 Goat, meat 0.05 Goat, meat byproducts 0.05 Gooseberry, postharvest 1.0 Grape, postharvest 1.0 Guava, postharvest 1.0 Hog, fat 1.0 Hog, meat 0.05 Hog, meat byproducts 0.05 Horse, fat 1.0 Horse, meat 0.05 Horse, meat byproducts 0.05 Loganberry, postharvest 1.0 Mango, postharvest 1.0 Milk, fat (reflecting negligible residues in milk) 0.05 Muskmelon, postharvest 1.0 Oat, grain, postharvest 1.0 Orange, postharvest 1.0 Pea, dry, seed, postharvest 1.0 Peach, postharvest 1.0 Peanut, postharvest 1.0 Pear, postharvest 1.0 Pineapple, postharvest 1.0 Plum, prune, fresh, postharvest 1.0 Potato, postharvest 0.05 Raspberry, postharvest 1.0 Rice, grain, postharvest 3.0 Rye, grain, postharvest 3.0 Sheep, fat 1.0 Sheep, meat 0.05 Sheep, meat byproducts 0.05 Sorghum, grain, grain, postharvest 1.0 Sweet potato, postharvest 0.05 Tomato, postharvest 1.0 Walnut, postharvest 1.0 Wheat, grain, postharvest 3.0

(2)A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on milled fractions derived from grain, cereal when present as a result of its use in cereal grain mills and in storage areas for milled cereal grain products.

(3)A tolerance of 1.0 ppm is established for residues of the insecticide pyrethrins in or on all food items in food handling establishments where food and food products are held, processed, prepared and/or served. Food must be removed or covered prior to use.

(4)Where tolerances are established on both the raw agricultural commodities and processed foods made there-from, the total residues of pyrethrins in or on the processed food shall not be greater than that permitted by the larger of the two tolerances. 4. Section 180.314 is amended by alphabetically adding the following commodity to the table in paragraph

(c)to read as follows § 180.314 Triallate; tolerance for residues.

(c)*Tolerances with regional registrations* . * * * Commodity Parts per million * * * * * Wheat, forage 0.05 * * * * * 5. Section 180.339 is amended by alphabetically adding the following commodity to the table in paragraph (a)(1) to read as follows. § 180.339 MCPA; tolerances for residues. (a)(1) *General* . * * * Commodity Parts per million * * * * * Grain, aspirated fractions 3.0 * * * * * 6. Section 180.362 is amended by alphabetically adding the following commodity to the table in paragraph (a)(1) to read as follows. § 180.362 Hexakis (2-methyl-2-phenylpropyl)distannoxane; tolerances for residues.

(a)* * *

(1)* * * Commodity Parts per million * * * * * Pistachio 0.5 * * * * * [FR Doc. E8-1535 Filed 1-28-08; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 716 [EPA-HQ-OPPT-2007-0487; FRL-8154-2] RIN 2070-AB11 Health and Safety Data Reporting; Addition of Certain Chemicals AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This final rule, issued pursuant to section 8(d) of the Toxic Substances Control Act

(TSCA)and its regulations, requires manufacturers (including importers) of consumer products intended for use by children who also manufacture (including import) lead or lead compounds to report certain unpublished health and safety data to EPA. This final rule adds lead and lead compounds to 40 CFR 716.120 because the Interagency Testing Committee

(ITC)added the category of lead and lead compounds to the *Priority Testing List* through its 60 th ITC Report. The ITC was established under section 4(e) of TSCA to recommend chemicals and chemical mixtures to EPA for priority testing consideration; the ITC periodically amends the TSCA section 4(e) *Priority Testing List* through periodic reports submitted to EPA. DATES: This final rule is effective on February 28, 2008. For purposes of judicial review, this final rule shall be promulgated at 1 p.m. eastern daylight/standard time on February 12, 2008. (See 40 CFR 23.5.) A request to withdraw a chemical from this final rule pursuant to 40 CFR 716.105(c) must be received on or before February 12, 2008. (See Unit IV. of the SUPPLEMENTARY INFORMATION .) For dates for reporting requirements, see Unit III.B. of the SUPPLEMENTARY INFORMATION . ADDRESSES: Submit your comments, identified by docket identification

(ID)number EPA-HQ-OPPT-2007-0487, by one of the following methods. • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Hand Delivery* : OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC, Attention: Docket ID Number EPA-HQ-OPPT-2007-0487. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is

(202)564-8930. 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 number EPA-HQ-OPPT-2007-0487. EPA's policy is that all comments received will be included in the public docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the 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 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., 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. *Data Submissions* : Copies of health and safety studies and accompanying cover letters, lists of health and safety studies, requests for extensions of time, and withdrawal requests must be submitted in accordance with the instructions in 40 CFR 716.30, 716.35, 716.60, and 716.105, respectively. Each submission must be identified by docket ID number EPA-HQ-OPPT-2007-0487. 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* : Joe Nash, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:

(202)564-8886; fax number:

(202)564-4765; e-mail address: *ccd.citb@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may potentially be affected by this action if you manufacture (including import) consumer products intended for use by children and also manufacture (including import) lead or lead compounds. Importers are a subset of manufacturers under TSCA. Potentially affected entities may include, but are not limited to: • Manufacturers (including importers) of costume jewelry and novelty manufacturing (NAICS code 339914). • Manufacturers (including importers) of dolls and stuffed toys (NAICS code 339931). • Manufacturers (including importers) of games, toys, and children's vehicles (NAICS code 339932). • Manufacturers (including importers) of fasteners, buttons, needles, and pins (NAICS code 339993). • Wholesalers of toy and hobby goods, establishments with product line 12812 (NAICS code 42392). • Discount department stores (NAICS code 452112). • Warehouse clubs and supercenters (NAICS code 45291). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT . B. How Do I Submit CBI Information? Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. II. Background A. What Action is the Agency Taking? EPA is amending its model Health and Safety Data Reporting rule under TSCA section 8(d) (TSCA section 8(d) model rule) to require manufacturers (including importers) of consumer products intended for use by children who also manufacture (including import) lead or lead compounds, as listed on the ITC's TSCA section 4(e) *Priority Testing List* , to submit certain unpublished health and safety data to EPA. The import of children’s products that contain lead or lead compounds constitutes the manufacture of lead or lead compounds under TSCA. EPA believes importers of such products are the entities most likely to have the type of health and safety studies EPA is seeking. Based on information available to the Agency, EPA believes that imported items represent a majority of the value of sales of toys and games (without regard to lead content) in NAICS code 42392. In addition, EPA has reviewed Consumer Product Safety Commission

(CPSC)recalls of lead-contaminated children’s products. None of the recalls reviewed implicated products that were produced domestically. See CPSC Recalls and Product Safety News at *http://www.cpsc.gov/cpscpub/prerel/prerel.html* (Ref. 1). Processors are not included in this final rule. As explained in Unit II.B., the ITC listing procedure and the TSCA section 8(d) model rule do not generally result in TSCA section 8(d) model rules that cover processors. Therefore, a domestic company that processes lead in the manufacture of children’s products would not be covered, unless that company also manufactures (including imports) lead or lead compounds. The regulatory text of this document lists examples of chemicals and their CAS numbers in the category of lead and lead compounds. The regulatory text also lists the data reporting requirements imposed by this amendment to the TSCA section 8(d) model rule. B. What is the Agency's Authority? Section 8(d) of TSCA allows EPA to “promulgate rules under which the Administrator shall require any person who manufactures, processes or distributes in commerce or who proposes to manufacture, process or distribute in commerce any chemical substance or mixture” to submit lists of certain health and safety studies, as well as copies of such studies (15 U.S.C. 2607(d)). Under TSCA, import is included in the definition of “manufacture” (15 U.S.C. 2602(7)). The TSCA section 8(d) model rule (15 U.S.C. 2607(d)) is codified at 40 CFR part 716. EPA uses this TSCA section 8(d) model rule to quickly gather current information on chemicals. The TSCA section 8(d) model rule requires past, current, and prospective manufacturers, importers, and (if specified by EPA in a particular rule under TSCA section 8(d)) processors of listed chemicals to submit to EPA copies and lists of unpublished health and safety studies on the listed chemicals that they manufacture, import, or (if specified by EPA in a particular rule under TSCA section 8(d)) process. These studies provide EPA with useful information and have provided significant support for EPA's decisionmaking under TSCA sections 4, 5, 6, 8, and 9. The TSCA section 8(d) model rule provides for the addition of TSCA section 4(e) *Priority Testing List* chemicals. Whenever EPA announces the receipt of an ITC report, EPA amends, unless otherwise instructed by the ITC, the TSCA section 8(d) model rule by adding the recommended (or designated) chemicals. In doing so, EPA must provide a 14-day period, which starts 14 days after date of publication of the amendments to the TSCA section 8(d) model rule in the **Federal Register** , for persons to submit information showing why a chemical substance, mixture, or category of chemical substances should be withdrawn from the amendment. The amendment adding these chemicals to the TSCA section 8(d) model rule is effective 30 days after date of publication in the **Federal Register** . If the Administrator withdraws a chemical from the amendment, then no later than 30 days after the date of publication of the amendment in the **Federal Register** , a **Federal Register** document announcing this decision is published. Explanations of the procedures to follow if a respondent to this rule wishes to assert a claim of confidentiality for a part of a study or certain information contained in a study are provided at 40 CFR 716.55. C. Related Obligations Under TSCA Section 8 Aside from obligations that will arise under this final rule, persons who manufacture, process, or distribute lead may be subject to other requirements under TSCA section 8. For example, TSCA section 8(e) (15 U.S.C. 2607(e)) requires that: Any person who manufactures, processes, or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment shall immediately inform the Administrator of such information unless such person has actual knowledge that the Administrator has been adequately informed of such information. Toxicity data that indicate a substantial risk of injury to health or the environment are the most common kinds of information received by EPA under TSCA section 8(e), but the Agency also often receives information on exposure, environmental persistence, or other kinds of information that indicate a substantial risk of injury to health or the environment. Of note, given the focus of this TSCA section 8(d) model rule, EPA issued guidance in September 2006 (Ref. 2) that may be relevant to persons who manufacture, process, or distribute lead-containing products intended for use by children. The guidance discusses the circumstances under which reporting under TSCA section 8(e) should be considered for substantial risk information obtained that indicates: 1. Previously unknown and significant human exposure to a chemical known to cause serious health effects (e.g., absorption of a chemical from manufactured products or articles) or 2. The presence of a previously unknown hazardous or toxic constituent in a product, including manufactured articles. Other guidance and information relevant to TSCA section 8(e) reporting are available on the TSCA section 8(e) website at *http://www.epa.gov/oppt/tsca8e/index.htm* . D. Why is this Action Being Issued as a Final Rule? EPA is publishing this action as a final rule without prior notice and an opportunity for comment pursuant to the procedures set forth in 40 CFR 716.105(b) and (c). EPA finds that there is ‘‘good cause’’ under the Administrative Procedure Act

(APA)(5 U.S.C. 553(b)(3)(B)) to make these amendments without prior notice and comment. EPA believes notice and an opportunity for comment on this action are unnecessary. TSCA directs the ITC to add chemicals to the *Priority Testing List* for which EPA should give priority consideration. EPA also lacks the authority to remove a chemical from the *Priority Testing List* once it has been added by the ITC. As explained earlier in this preamble, pursuant to 40 CFR 716.105(b) and (c), once the ITC adds a chemical to the *Priority Testing List* , EPA in turn is obliged to add that chemical to the list of chemicals subject to the TSCA section 8(d) model rule reporting requirements, unless requested not to do so by the ITC. EPA promulgated this procedure in 1985 after having solicited public comment on the need for and mechanics of this procedure (Ref. 3). Because that rule established the procedure for adding ITC chemicals to the TSCA section 8(d) model rule, it is unnecessary to request comment on the procedure in this action. Finally, 40 CFR 716.105(b) and

(c)do provide EPA with the discretion to withdraw a chemical from the TSCA section 8(d) model rule if a party submits to EPA information showing good cause that a chemical should be removed from the TSCA section 8(d) model rule. III. Final Rule A. What Chemicals Are to be Added? In this document, EPA is adding the category of lead and lead compounds to the TSCA section 8(d) model rule as requested by the ITC in its 60 th ITC Report (Ref. 4). This final rule requires manufacturers (including importers) of consumer products intended for use by children who also manufacture (including import) lead or lead compounds to report certain unpublished health and safety data to EPA. B. What Are the General Reporting Requirements and Deadlines? The general provisions regarding the submission of copies and lists of studies under EPA's TSCA section 8(d) model rule are located at 40 CFR 716.30 and 716.35, respectively, and additional reporting requirements and exemptions are described elsewhere in 40 CFR part 716. The reporting schedule and reporting period for persons subject to this final rule are described at 40 CFR 716.60 and 716.65. Chemical specific reporting requirements appear at 40 CFR 716.21. C. What Are the Chemical Specific Reporting Requirements? Pursuant to 40 CFR 716.20(b)(5), this amendment specifies the types of environmental fate, health, and/or environmental effects studies that must be reported and the chemical grade/purity requirements that must be met or exceeded in individual studies for lead and lead compounds. The amendment requires the submission of all unpublished health and safety studies that: 1. Relate to the lead content of consumer products that are “intended for use by children” as that term is defined at 40 CFR 710.43 (excluding children’s metal jewelry, as described by CPSC in its ANPRM) (Ref. 5), or 2. Assess children’s exposure to lead from such products (including studies of bioavailability). With regard to grade/purity requirements, studies showing any measurable lead content in such products must be submitted. The exclusion for children’s metal jewelry functions to exempt studies on those products already being directly addressed by CPSC. For more information on CPSC’s actions, please see CPSC’s Advance Notice of Proposed Rulemaking (ANPRM) regarding children’s jewelry containing lead (Ref. 5). This final rule does not require reporting of any other health and safety studies. This amendment also specifies manufacturers subject to these reporting requirements: Manufacturers (including importers) of consumer products intended for use by children who also manufacture (including import) lead or lead compounds. D. Economic Analysis The economic analysis for the addition of lead and lead compounds to the TSCA section 8(d) model rule is entitled, * TSCA Section 8(d): Economic Impact Analysis for Adding Lead and Lead Compounds from the 60 th Report of the TSCA Interagency Testing Committee to the Health and Safety Data Reporting rule * . November 14, 2007. (Ref. 6). The number of firms that will be affected by this final rule could not be estimated directly by EPA in the Economic Analysis. In most previous instances, the TSCA section 8(d) analysis has focused on the firms that manufacture the chemicals, as shown in the EPA-maintained Chemical Update System

(CUS)database. In this instance, the CUS database does not include those companies that manufacture (including import) consumer products intended for use by children as well as manufacture (including import) lead or lead compounds. Importers are a subset of manufacturers under TSCA. Reporting requirements are further limited to those studies that relate to the lead content of consumer products (excluding metal toy jewelry) that are intended for use by children or studies that assess children’s exposure to lead from such products (including studies of bioavailability). The U.S. Census Bureau’s Economic Census does not separately identify these firms. As a result, it is difficult to estimate the number of firms affected by this rule. The Agency has chosen to estimate the number of affected firms by using census data of the number of firms included in certain NAICS categories, selected with the expectation that these categories include firms which may be engaged in manufacturing or importing children’s products. The selected categories and the number of firms in each are: • NAICS code 339914—Costume jewelry and novelty manufacturing (651 firms). • NAICS code 339931—Doll and stuffed toy manufacturing (134 firms). • NAICS code 339932—Game, toy, and children's vehicle manufacturing (733 firms). • NAICS code 339993—Fastener, button, needle, and pin manufacturing (180 firms). • NAICS code 42392—Toy and hobby goods and supplies merchant wholesalers (establishments with product line 12812) (1,310 firms). • NAICS code 452112—Discount department stores (39 firms). • NAICS code 45291—Warehouse clubs and supercenters (16 firms). It is expected that some number of firms within those categories will not need to respond, and that some other unknown number of firms not within those categories will be required to respond. This tabulation is meant to be suggestive of the potential number of respondents, given the available information, and cannot be expected to be an accurate point estimate. The number of studies that might be submitted in response to this final rule is also difficult to estimate. The number of firms involved is likely to be larger than for other chemicals that have been listed under amendments to the TSCA section 8(d) model rule. However, the nature of the studies required to be submitted are restricted to a specific category. An earlier examination of studies submitted under previous amendments to the TSCA section 8(d) model rule over an 8 year period prior to April 2002 reported an average of 5.66 studies per chemical. An examination of more recent experience with amendments to the TSCA section 8(d) model rule reported an average of 1 study per chemical. Based both on past EPA experience and on the professional judgment of Agency personnel responsible for the TSCA section 8(d) program, EPA estimates an average of 5 studies will be submitted for each of the 12 chemicals listed as examples of chemicals in the lead and lead compounds category, for a total of 60 studies. However, in consideration of the uncertainty of this per chemical estimate and the fact that relevant studies on lead compounds other than the listed 12 example compounds may be reported, the Economic Analysis also estimates the costs in a case where 10 times that number, or 600, studies are submitted (Ref. 6). Given the assumptions in this unit, the industry reporting costs and burden associated with this rule are estimated in the Economic Analysis (Ref. 6) to be the following: **Industry Reporting Costs (Dollars) and Burden (Hours)** Collection Activity

(a)Unit Burden Hours

(b)Unit Cost

(c)Number of Firms or Sites Per Activity

(d)=

(a)x

(c)Total Burden Hours

(e)=

(b)x

(c)Total Cost 1. Review of rule 2 hours $126.66 3,063 6,126 $387,960 2. Site identification 3 hours $189.99 1,317 3,951 $250,584 3. Site file search 3 hours $161.34 1,361 4,083 $219,584 4. Study title lists 1 hour $26.40 60 60 $1,584 5. Photocopy studies 0.5 hour $13.20 60 30 $792 6. Robust summaries 6 hours $322.68 6 36 $1,936 7. CBI review 1 hour $63.33 60 60 $3,800 8. Post-reporting period submission 1.5 hours $76.53 1 1.5 $77 Total 14,347 $865,949 Note: Not all respondents perform all activities. The sensitivity analysis conducted to estimate the costs if 600 studies are submitted suggests that the burden estimate for this TSCA section 8(d) action is relatively insensitive to the estimate of the number of studies. A ten-fold error in that estimate is calculated to lead to an increase of roughly 1,500 burden hours (or less than 12%), and an increase of about $74,000 in cost (or less than 10%). The burden and cost estimates are largely determined by the estimate of the number of responding firms, and is relatively insensitive to the estimate of the number of studies. The estimated annual cost of the TSCA section 8(d) model rule to the Federal Government is approximately the time of one full-time employee, or 2,080 hours. Based on previous TSCA section 8(d) analyses and Agency professional judgment, this particular data collection is expected to represent 25% of 1 year’s burden, or the equivalent of approximately 520 hours. That will amount to a cost to Federal Government of $25,285. IV. Requesting a Chemical be Withdrawn from the Rule As specified in 40 CFR 716.105(c), EPA may remove a chemical substance, mixture, or category of chemical substances from this final rule for good cause prior to the effective date of this final rule. Any person who believes that the reporting required by this final rule is not warranted for a chemical substance, mixture, or category of chemical substances listed in this final rule, must submit to EPA detailed reasons for that belief. You must submit your request to EPA on or before February 12, 2008 and in accordance with the instructions provided in 40 CFR 716.105(c), which are briefly summarized here. In addition, to ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPPT-2007-0487 on your request and submit that request in accordance with the instructions in 40 CFR 716.105(c). If the Administrator withdraws a chemical substance, mixture, or category of chemical substances from the amendment, in accordance with 40 CFR 716.105(c), a **Federal Register** document announcing this decision will be published no later than February 28, 2008. V. Materials in the Docket The official docket for this final rule has been established under docket ID number EPA-HQ-OPPT-2007-0487. The official public docket is available for review as specified in ADDRESSES . The following is a listing of the documents referenced in this preamble that have been placed in the official docket for this final rule: 1. CPSC. Recalls and Product Safety News. Available on-line at: *http://www.cpsc.gov/cpscpub/prerel/prerel.html* . 2. EPA. Toxic Substances Control Act

(TSCA)Section 8(e) Notices—Frequent Questions—September 2006—Health and Safety - Questions 25 and 26. Available on-line at: *http://www.epa.gov/oppt/tsca8e/pubs/frequentlyaskedquestionsfaqs.htm#health2* . 3. EPA. Chemical Information Rules; Additional Automatic Reporting; Final Rule. **Federal Register** (50 FR 34809; August 28, 1985). 4. ITC. Sixtieth Report of the ITC. **Federal Register** (72 FR 41414, July 27, 2007) (FRL-8137-6). Available on-line at: *http://www.epa.gov/fedrgstr* . 5. CPSC. Children's Jewelry Containing Lead; Advanced Notice of Proposed Rulemaking; Request for Comments and Information. **Federal Register** (72 FR 920, January 9, 2007). 6. EPA. TSCA Section 8(d): Economic Impact Analysis for Adding Lead and Lead Compounds from the 60 th Report of the TSCA Interagency Testing Committee to the Health and Safety Data Reporting rule. November 14, 2007. VI. Statutory and Executive Order Reviews A. Executive Order 12866 The Office of Management and Budget

(OMB)has exempted actions under TSCA section 8(d) related to the TSCA section 8(d) model rule from the requirements of Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). B. Paperwork Reduction Act The information collection requirements contained in TSCA section 8(d) model rules have already been approved by OMB under the provisions of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., and OMB control number 2070-0004 (EPA ICR No. 0575). The collection activities in this final rule are captured by the existing approval and do not require additional review and/or approval by OMB. EPA estimates that the information collection activities related to health and safety data reporting for the category of lead and lead compounds in this final rule will result in a total public reporting burden of 14,348 hours, or roughly 4.7 hours per firm. Of that total, an estimated 6,126 hours are estimated to be spent performing an initial review of the final rule. The remaining hours are associated with the actual required reporting activities (Ref. 6). As defined by the PRA and 5 CFR 1320.3(b), “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 which have subsequently changed; 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. Under PRA, an Agency may not conduct or sponsor, and a person is not required to respond to, an information collection request unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, including its regulations implementing TSCA section 8(d) at 40 CFR part 716, are listed in the table in 40 CFR part 9 and included on the related collection instrument. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the display requirements of PRA and OMB’s implementing regulations at 5 CFR part 1320. C. Regulatory Flexibility Act Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 *et seq* ., the Agency hereby certifies that this final rule will not have a significant adverse economic impact on a substantial number of small entities. The factual basis for the Agency's determination is presented in the small entity impact analysis prepared as part of the Economic Analysis (Ref. 6) for this final rule, and is summarized here. To estimate the impact of the final rule on a business, EPA used the “sales test,” wherein costs for any individual firm are measured as a percent of annual sales. The average cost per company for the final rule is estimated to be $283. At an average cost for any one firm of $283, the firm’s total sales would have to be less than $30,000 for this final rule to have an impact of even 1% of sales. Because of the uncertainty regarding the number and identity of the firms who will be required to respond to this data collection, it is not possible to directly compare the estimated cost to the actual sales volume of those firms. But due to the low level of the impact, it is not expected that this action will have a significant impact on a substantial number of small entities. D. Unfunded Mandates Reform Act Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, EPA has determined that this final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. In addition, EPA has determined that this final rule will not significantly or uniquely affect small governments. Accordingly, the final rule is not subject to the requirements of UMRA sections 202, 203, 204, or 205. E. Executive Orders 13132 and 13175 Based on EPA's experience with past TSCA section 8(d) model rules, State, local, and tribal governments have not been impacted by these rules, and EPA does not have any reasons to believe that any State, local, or tribal government will be impacted by this final rule. As a result, these rules are not subject to the requirements in Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) or Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). F. Executive Order 13045 Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23,1997), does not apply to this final rule, because it is not “economically significant” as defined under Executive Order 12866, and does not concern an environmental health or safety risk that may have a disproportionate effect on children. This final rule requires the reporting of health and safety data to EPA by manufacturers (including importers) of certain chemicals requested by the ITC to be added to the TSCA 8(d) model rule in its 60 th ITC Report (Ref. 4). G. Executive Order 13211 This final rule is not subject to Executive Order 13211, entitled *Actions 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. H. National Technology Transfer and Advancement Act This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Section 12(d) of NTTAA directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. I. Executive Order 12898 This action does not involve special considerations of environmental justice-related issues pursuant to Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). VII. 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 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). List of Subjects in 40 CFR Part 716 Environmental protection, Chemicals, Children, Hazardous substances, Health and safety, Lead, Reporting and recordkeeping requirements, Toys. Dated: January 22, 2008. Charles M. Auer, Director, Office of Pollution Prevention and Toxics. Therefore, 40 CFR chapter I is amended as follows: PART 716—[AMENDED] 1. The authority citation for part 716 continues to read as follows: Authority: 15 U.S.C. 2607(d). 2. By adding a new paragraph (a)(8) to § 716.21 to read as follows: § 716.21 Chemical specific reporting requirements.

(a)* * * (8)(i) Reporting requirements apply only to manufacturers (including importers) of consumer products intended for use by children who also manufacture (including import) lead or lead compounds. For the category “lead and lead compounds,” all unpublished health and safety studies that:

(A)Relate to the lead content of consumer products that are “intended for use by children” as that term is defined at 40 CFR 710.43 (excluding children’s metal jewelry), or

(B)Assess children’s exposure to lead from such products (including studies of bioavailability).

(ii)With regard to purity, studies showing any measurable lead content in such products must be submitted. 3. In § 716.120, the table in paragraph

(c)is amended by adding in alphabetical order the category “Lead and lead compounds” and its entries to read as follows: § 716.120 Substances and listed mixtures to which this subpart applies.

(c)* * * Category CAS No. (examples for category) Special exemptions Effective date Sunset date * * * * * * * Lead and lead compounds ...................................... § 716.21(a)(8) February 28, 2008 April 28, 2008 Lead 7439-92-1 § 716.21(a)(8) February 28, 2008 April 28, 2008 Acetic acid, lead (2+) salt 301-04-2 § 716.21(a)(8) February 28, 2008 April 28, 2008 Carbonic acid, lead (2+) salt (1:1) 598-63-0 § 716.21(a)(8) February 28, 2008 April 28, 2008 Lead chloride (PbCl 2 ) 7758-95-4 § 716.21(a)(8) February 28, 2008 April 28, 2008 Chromic acid (H 2 Cr0 4 ), lead (2+) salt (1:1) 7758-97-6 § 716.21(a)(8) February 28, 2008 April 28, 2008 Lead oxide (PbO 2 ) 1309-60-0 § 716.21(a)(8) February 28, 2008 April 28, 2008 Borate (1-), tetrafluoro-, lead (2+) (2:1) 13814-96-5 § 716.21(a)(8) February 28, 2008 April 28, 2008 Phosphoric acid, lead (2+) salt (2:3) 7446-27-7 § 716.21(a)(8) February 28, 2008 April 28, 2008 Silicic acid, lead salt, basic 53466-66-3 § 716.21(a)(8) February 28, 2008 April 28, 2008 Octadecanoic acid, lead salt (1:?) 7428-48-0 § 716.21(a)(8) February 28, 2008 April 28, 2008 Sulfuric acid, lead salt (1:?), basic 63653-42-9 § 716.21(a)(8) February 28, 2008 April 28, 2008 Lead sulfide

(PbS)1314-87-0 § 716.21(a)(8) February 28, 2008 April 28, 2008 * * * * * * * [FR Doc. E8-1546 Filed 1-28-08; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 080123076-8078-01] RIN 0648-XF27 Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule. SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, announces temporary restrictions consistent with the requirements of the Atlantic Large Whale Take Reduction Plan's (ALWTRP) implementing regulations. These regulations apply to lobster trap/pot and anchored gillnet fishermen in an area totaling approximately 2,637 nm 2 (9,045 km 2 ), south of Rockland, Maine, for 15 days. The purpose of this action is to provide protection to an aggregation of northern right whales (right whales). DATES: Effective beginning at 0001 hours January 31, 2008, through 2400 hours February 14, 2008. ADDRESSES: Copies of the proposed and final Dynamic Area Management

(DAM)rules, Environmental Assessments (EAs), Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, and progress reports on implementation of the ALWTRP may also be obtained by writing Diane Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA 01930. FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast Region, 978-281-9300 x6503; or Kristy Long, NMFS, Office of Protected Resources, 301-713-2322. SUPPLEMENTARY INFORMATION: Electronic Access Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP Web site at *http://www.nero.noaa.gov/whaletrp/* . Background The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act

(MMPA)to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) due to incidental interaction with commercial fishing activities. In addition, the measures identified in the ALWTRP would provide conservation benefits to a fourth species (minke), which are neither listed as endangered nor threatened under the Endangered Species Act (ESA). The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result). On January 9, 2002, NMFS published the final rule to implement the ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/pot and anchored gillnet fishing gear in areas north of 40° N. lat. to protect right whales. Under the DAM program, NMFS may:

(1)require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15-day period;

(2)allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or

(3)issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15-day period and asking fishermen not to set any additional gear in the DAM zone during the 15-day period. A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm 2 (257 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm 2 (3.43 km 2 ). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting. On January 17, 2008, an aerial survey reported an aggregation of twenty-nine right whales in the proximity of 43° 11' N latitude and 68° 20' W longitude. The position lies approximately 60 nm south of Rockland, Maine. After conducting an investigation, NMFS ascertained that the report came from a qualified individual and determined that the report was reliable. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP. Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data. NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. As a result of this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule. The DAM Zone is bound by the following coordinates: 43° 40' N., 68° 53' W. (NW Corner) 43° 40' N., 67° 46' W. 42° 46' N., 67° 46' W. 42° 46' N., 68° 53' W. 43° 40' N., 68° 53' W. (NW Corner) In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone. Special note for gillnet fisherman: a portion of this DAM zone overlaps the year-round Cashes Ledge Closure Area found at 50 CFR 648.81(d), and the February Cashes Ledge Closure Area for Harbor Porpoise found at 50 CFR 229.33(a)(6). Due to these closures, sink gillnet gear is prohibited from these portions of the DAM zone. Lobster Trap/pot Gear Fishermen utilizing lobster trap/pot gear within portions of Northern Nearshore Lobster Waters that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and 4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys. Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and 4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys. Anchored Gillnet Gear Fishermen utilizing anchored gillnet gear within the portions of the Other Northeast Gillnet Waters Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per string; 4. The breaking strength of each net panel weak link must not exceed 1,100 lb (498.8 kg). The weak link requirements apply to all variations in net panel size. One weak link must be placed in the center of the floatline and one weak link must be placed in the center of each of the up and down lines at both ends of the net panel. Additionally, one weak link must be placed as close as possible to each end of the net panels on the floatline; or, one weak link must be placed between floatline tie-loops between net panels and one weak link must be placed where the floatline tie-loops attach to the bridle, buoy line, or groundline at each end of a net string; 5. A weak link with a maximum breaking strength of 1,100 lb (498.8 kg) must be placed at all buoys; and 6. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string. The restrictions will be in effect beginning at 0001 hours January 31, 2008, through 2400 hours February 14, 2008, unless terminated sooner or extended by NMFS through another notification in the **Federal Register** . The restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon issuance of the rule by the AA. Classification In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator

(AA)for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales. Environmental Assessments for the DAM program were prepared on December 28, 2001, and August 6, 2003. This action falls within the scope of the analyses of these EAs, which are available from the agency upon request. NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable. For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this document in the **Federal Register** . NMFS will also endeavor to provide notice of this action to fishermen through other means upon issuance of the rule by the AA, thereby providing approximately 3 additional days of notice while the Office of the **Federal Register** processes the document for publication. NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state. The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, Department of Commerce, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request ( ADDRESSES ). The rule implementing the DAM program has been determined to be not significant under Executive Order 12866. Authority: 16 U.S.C. 1361 *et seq.* and 50 CFR 229.32(g)(3) Dated: January 23, 2008. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. [FR Doc. 08-375 Filed 1-24-08; 1:37 pm]

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