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Code · REGISTER · 2008-02-14 · Environmental Protection Agency (EPA) · Proposed Rules

Proposed Rules. Immediate final rule

18,289 words·~83 min read·/register/2008/02/14/08-683

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

BILLING CODE 4830-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 271 and 272 [EPA-R08-RCRA-2006-0501; FRL-8524-7] North Dakota: Final Authorization of State Hazardous Waste Management Program Revisions and Incorporation by Reference of Approved Hazardous Waste Program AGENCY: Environmental Protection Agency (EPA). ACTION: Immediate final rule. SUMMARY: The Solid Waste Disposal Act, as amended, commonly referred to as the Resource Conservation and Recovery Act (RCRA), allows the Environmental Protection Agency
(EPA)to authorize States to operate their hazardous waste management programs in lieu of the federal program. EPA uses the regulations entitled “Approved State Hazardous Waste Management Programs” to provide notice of the authorization status of State programs and to incorporate by reference those provisions of the State regulations that will be subject to EPA's inspection and enforcement. This rule codifies in the regulations the prior approval of North Dakota's hazardous waste management program and incorporates by reference authorized provisions of the State's regulations. In addition, this document corrects errors made in the **Federal Register** authorization documents for North Dakota published on June 25, 1990 and September 26, 2005. DATES: This final authorization will become effective on April 14, 2008, unless the EPA receives adverse written comment by March 17, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the immediate final rule in the **Federal Register** informing the public that the rule will not take effect. The incorporation by reference of authorized provisions in the North Dakota statutes and regulations contained in this rule is approved by the Director of the Federal Register as of April 14, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-RCRA-2006-0501, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail: daly.carl@epa.gov.* • *Fax:*
(303)312-6341. • *Mail:* Send written comments to Carl Daly, Solid and Hazardous Waste Program, EPA Region 8, Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. • *Hand Delivery or Courier:* Deliver your comments to Carl Daly, Solid and Hazardous Waste Program, EPA Region 8, Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted during the Regional Office's normal hours of operation. The public is advised to call in advance to verify the business hours. Special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA-2006-0501. EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov,* or e-mail. The federal web site, ( *http://www.regulations.gov* ) is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties, and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption, and be free of any defects or viruses. (For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* ). Docket: All documents in the docket are listed in the *http://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 through *www.regulations.gov* or in hard copy at: EPA Region 8, from 9 a.m. to 4 p.m., 1595 Wynkoop Street, Denver, Colorado, contact: Carl Daly, phone number
(303)312-6416, or, the North Dakota Department of Health
(NDDH)from 9 a.m. to 4 p.m., 1200 Missouri Ave., Bismarck, ND 58504-5264, contact: Curt Erickson, phone number
(701)328-5166. The public is advised to call in advance to verify the business hours. FOR FURTHER INFORMATION CONTACT: Carl Daly, Solid and Hazardous Waste Program, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202,
(303)312-6416, *daly.carl@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. Authorization of Revisions to North Dakota's Hazardous Waste Program A. Why Are Revisions to State Programs Necessary? B. What Decisions Have We Made in This Rule? C. What Is the Effect of This Authorization Decision? D. Why Wasn't There a Proposed Rule Before This Rule? E. What Happens if the EPA Receives Comments That Oppose This Action? F. For What Has North Dakota Previously Been Authorized? G. What Changes Are We Authorizing With This Action? H. Why Are the Revised State Rules Different From the Federal Rules? I. Who Handles Permits After the Authorization Takes Effect? J. How Does This Action Affect Indian Country (18 U.S.C. 1151) in North Dakota? II. Corrections A. Corrections to June 25, 1990 (55 FR 25836) Authorization Document B. Corrections to September 26, 2005 (70 FR 56132) Authorization Document III. Incorporation by Reference A. What is Codification? B. What Decisions Have We Made in This Action? C. What is the Effect of North Dakota's Codification on Enforcement? D. What State Provisions Are Not Part of the Codification? E. What Will be the Effect of Federal HSWA Requirements on the Codification? IV. Statutory and Executive Order Reviews I. Authorization of Revisions to North Dakota's Hazardous Waste Program A. Why Are Revisions to State Programs Necessary? States that have received final authorization from EPA under RCRA Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, States must change their programs and ask EPA to authorize their changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations
(CFR)parts 124, 260 through 266, 268, 270, 273, and 279. B. What Decisions Have We Made in This Rule? We conclude that North Dakota's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant North Dakota final authorization to operate its hazardous waste program with the changes described in the authorization application. North Dakota has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders, except in Indian country, and for carrying out those portions of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in North Dakota, including issuing permits, until North Dakota is authorized to do so. C. What Is the Effect of This Authorization Decision? The effect of this decision is that facilities in North Dakota subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent federal requirements. North Dakota has primary enforcement responsibility under its State hazardous waste program for violations of the program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, the authority to conduct inspections and require monitoring, tests, analyses, or reports; and enforce RCRA requirements and suspend or revoke permits. This action does not impose additional requirements on the regulated community because the regulations for which North Dakota is being authorized are already effective and are not changed by today's action. D. Why Wasn't There a Proposed Rule Before This Rule? EPA did not publish a proposal before today's rule because this action is a routine program change, and we do not expect comments opposing this approval. We are providing an opportunity for public comment at this time. In addition, in the proposed rules section of today's **Federal Register** , there is a separate document that proposes to authorize the State program changes. If we receive comments opposing this authorization, that document will serve as a proposal to authorize the changes. E. What Happens if the EPA Receives Comments That Oppose This Action? If EPA receives comments opposing this authorization, we will withdraw this rule by publishing a notice in the **Federal Register** before the rule becomes effective. We then will address all public comments in a later **Federal Register** . You may not have another opportunity to comment. If you want to comment on this action, you must do so at this time. If we receive comments opposing authorization of only a particular change to the State hazardous waste program, we will withdraw that part of the rule. However, the authorization of program changes that are not opposed by any comments will become effective on the date specified above. The **Federal Register** withdrawal document will specify which part of the authorization will become effective and which part is being withdrawn. F. For What Has North Dakota Previously Been Authorized? North Dakota initially received final authorization on October 5, 1984, effective October 19, 1984 (49 FR 39328) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on June 25, 1990, effective August 24, 1990 (55 FR 25836), May 4, 1992, effective July 6, 1992 (57 FR 19087), April 7, 1994, effective June 6, 1994 (59 FR 16566), January 19, 2000, effective March 20, 2000 (65 FR 02897), and September 26, 2005, effective November 25, 2005 (70 FR 56132). G. What Changes Are We Authorizing With This Action? On June 2, 2004, September 2, 2004, and October 26, 2004, North Dakota submitted final revision applications, seeking authorization of program changes in accordance with 40 CFR 271.21. During the approval of the revisions in the September 26, 2005 **Federal Register** , we inadvertently missed the rules being approved in this **Federal Register** . We now make an immediate final decision, subject to receipt of written comments opposing this action, that North Dakota's hazardous waste program revision satisfies all of the requirements necessary for final authorization. Therefore, we propose to grant North Dakota final authorization for the following program changes: 1. Program Revision Changes for Federal Rules North Dakota seeks authority to administer the federal requirements that are listed below (the Federal Citation is followed by the analog from the North Dakota Administrative Code (NDAC), Article 33-24, as revised December 1, 2003): Universal Treatment Standards and Treatment Standards for Organic Toxicity Characteristic Wastes and Newly Listed Wastes (59 FR 47982, 09/19/94 and 60 FR 00242, 01/03/95) (Checklists 137 and 137.1)/33-24-01-09 introductory paragraph, 33-24-01-09.2, 33-24-01-10.1 and 10.2, 33-24-01-11 introductory paragraph, 33-24-01-12 introductory paragraph, 33-24-01-12.1 and 12.2, 33-24-02-02.5.a.(3), 33-24-05-01.6.f, 33-24-05/Appendices VIII, and XXVIII, 33-24-05-204.1, 33-24-05-250.3.c.(2), 33-24-05-250.5.d, 33-24-05-251.1, 33-24-05-251.10, 33-24-05-256.1.a, 33-24-05-256.1.b introductory paragraph, 33-24-05-256.1.c introductory paragraph, 33-24-05-256.1.e thru 256.1.j, 33-24-05-256.2.c.(2), 33-24-05-256.2.d.(4), 33-24-05-256.4 and .4.a, 33-24-05-258.1, 33-24-05-258.4.a.(1) and (2), 33-24-05-258.4.b.(1), 33-24-05-278.1 thru .5, 33-24-05-280.1 thru 280.6, 33-24-05-280/Table, 33-24-05-281, 33-24-05-282.1, 33-24-05-282.1/Tables 1, 33-24-05-282.3.b, 33-24-05-282.4, 33-24-05-283, 33-24-05-283/Table CCW, 33-24-05-285.2.b, 33-24-05-286, 33-24-05-288, 33-24-05-288/Table UTS, 33-24-05-525.4.a, 33-24-05-525.4.c, 33-24-05-525.4.c.(1), 33-24-05-525.4.c.(1)(a), 33-24-05-525.4.c.(2), 33-24-06-16.5; Kraft Mill Steam Stripper Condensate Exclusion (63 FR 18504, 04/15/98) (Checklist 164)/33-24-02-04.1.o; CAMU Amendments (67 FR 02962, 01/22/02) (Checklist 196)/33-24-01-04, 33-24-01-04.99, 33-24-05-550.1 and .2, 33-24-05-551.1, 33-24-05-552.1 thru 552.1.e, 33-24-05-552.2.a thru 33-24-05-552.11, 33-24-05-554.1.a and .b, 33-24-05-555.1 thru 555.7; Recycled Used Oil Management Standards; Clarification (68 FR 44659, 07/30/03) (Checklist 203)/33-24-02-05.10, 33-24-05-610.9, 33-24-05-674, 33-24-05-674.2 thru 674.2.d. 2. State-Initiated Changes North Dakota has made amendments to its regulations that are not directly related to any of the federal rules addressed in Item G.1 above. These State-initiated changes are either conforming changes made to existing authorized provisions, or the adoption of provisions that clarify and make the State's regulations internally consistent. The State's regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the federal laws and regulations. These State-initiated changes are submitted under the requirements of 40 CFR 271.21(a) and include the following provisions from the North Dakota Administrative Code (NDAC), Article 33-24, as revised December 1, 2003, (unless otherwise indicated): 33-24-01-03; 33-24-01-04.5 “Administrator” or “regional administrator”; 33-24-01-07; 33-24-01-13 introductory paragraph and .1 through .4; 33-24-01-13.5; 33-24-01-14; 33-24-01-15; 33-24-02-01.1.b through .d; 33-24-02-04.1 introductory paragraph and .1.a through .e; 33-24-02-04.2 introductory paragraph; 33-24-02-04.2.i; 33-24-02-04.3 and .4.a introductory paragraph; 33-24-02-05.5.b; 33-24-02-05.7.b; 33-24-02-18.1 through .2; 33-24-02-18.4; 33-24-02-19.2.b(3)(a); 33-24-03-02.1 and .2; 33-24-03-02.3.c; 33-24-03-07.1.a and .b; 33-24-03-13.2, (except the phrase “March first of each even-numbered year”); 33-24-03-14.1 introductory paragraph; 33-24-03-14.1.a and .b; 33-24-03-14.2; 33-24-03-14.3; 33-24-03-15.2 introductory paragraph; 33-24-03-16.1; 33-24-03-17; 33-24-03-20; 33-24-03-40; 33-24-04-04.4.a and .b; 33-24-04-04.6.a(3)(c) and .6.a(4); 33-24-04-04.6.c(1) and (2); 33-24-04-04.6.d(1) and (2); 33-24-04-04.7.a and .b; 33-24-04-04.8.b(3); 33-24-04-06.3.a; 33-24-05-01.5; 33-24-05-01.8; 33-24-05-29.6; 33-24-05-40.2.j through .n; 33-24-05-40.2.o and .p; 33-24-05-42 introductory paragraph; 33-24-05-44 introductory paragraph; 33-24-05-50; 33-24-05-51, (except Table 1); 33-24-05-61.1 introductory paragraph and .1.a; 33-24-05-63; 33-24-05-64; 33-24-05-67.1 through .2 introductory paragraph; 33-24-05-67.4.c and .d; 33-24-05-74.1 and .2 introductory paragraph; 33-24-05-77.6.a introductory paragraph; 33-24-05-77.6.a(1) introductory paragraph and (a); 33-24-05-77.6.a(1)(c); 33-24-05-77.6.a(2) introductory paragraph and (a); 33-24-05-77.6.a(2)(c); 33-24-05-77.6.b through .i; 33-24-05-77.6.k; 33-24-05-79.1.a(1) and (2); 33-24-05-79.2.a(1) and (2); 33-24-05-79.6.a and .b; 33-24-05-79.6.c introductory paragraph; 33-24-05-79.6.c(2) and (3); 33-24-05-79.6.d and .e; 33-24-05-79.6.g; 33-24-05-80.1; 33-24-05-81.1; 33-24-05-81.9; 33-24-05-81.10; 33-24-05-93; 33-24-05-105; 33-24-05-108.2.a; 33-24-05-118; 33-24-05-119.1 introductory paragraph; 33-24-05-119.1.a through .c; 33-24-05-119.2; 33-24-05-119.5; 33-24-05-120.1 through .3; 33-24-05-121; 33-24-05-122.1 through .2.a; 33-24-05-122.2.c and .d; 33-24-05-122.3; 33-24-05-123.1 through .3; 33-24-05-124; 33-24-05-125; 33-24-05-131.1 introductory paragraph; 33-24-05-131.1.a and .b; 33-24-05-132.1; 33-24-05-165.1.a; 33-24-05-177.1 introductory paragraph through .2.c; 33-24-05-177.5 introductory paragraph; 33-24-05-177.5.b; 33-24-05-178.1; 33-24-05-182; 33-24-05-183.1 introductory paragraph; 33-24-05-183.4, (except .4.a(2)); 33-24-05-271.1; 33-24-05-406.1.a; 33-24-05-435; 33-24-05-476; 33-24-05-501; 33-24-05-504.2.a and .b; 33-24-05, Appendices III and IV; 33-24-06-01.2.b(9), (except .2.b(9)(a)(4) and .2.b(9)(c)); 33-24-06-01.2.c; 33-24-06-01.10; 33-24-06-03.2 and .3; 33-24-06-04.10.c; 33-24-06-04.12.f and .j; 33-24-06-06.1; 33-24-06-08.2; 33-24-06-14.5.b(1)(a); 33-24-06-14.5.c(2)(b); 33-24-06-14.6; 33-24-06-17.2.u(2)(a); 33-24-06-17.2.v(2); 33-24-06-17.3, (except .d(2)); 33-24-06-18.2 introductory paragraph through .2.c(6); 33-24-07-05.2.b; 33-24-07-06.3.a(5) and (6). Since the base program, North Dakota has removed certain provisions from the authorized program regulations which resulted in the clarification of the State's program. These provisions have been reviewed and we have determined that it is appropriate for the State to remove them and that their removal has no impact on the equivalency or consistency with the federal program. The provisions removed were NDAC sections 33-24-05-116.1.b, .c, and .e, and 33-24-05-251.2, as found in the December 1, 1988 version of the regulations; and 33-24-06-17.2.v.(3)(b) and (c), 33-24-06-17.2.z, and 33-24-06-20, as found in the January 1, 1984 version of the regulations. H. Why Are the Revised State Rules Different From the Federal Rules? We consider the following State requirements to be more stringent than the federal requirements: 33-24-03-12.1.a(1) and (2), because North Dakota subjects generators to full status rather than interim status standards; 33-24-05-108.2.a., because North Dakota requires facilities to perform daily inspections of overfill and spill control equipment rather than allowing the facility to determine the inspection frequency. There are no requirements that are broader-in-scope than the federal program in these revisions. North Dakota's rules, promulgated pursuant to this application, contain several errors which may create confusion within the regulated community. EPA has determined that the errors associated with the issues do not pose implementation or enforcement problems. Therefore, EPA will approve this application with the understanding that the State will correct these items during its next rulemaking. These errors are at the following citations within the North Dakota Administrative Code (NDAC), revised December 1, 2003: 33-24-05-278.1, 33-24-05-552.5.d.(4)(a), 33-24-05-552.5.d.(4)(e). I. Who Handles Permits After the Authorization Takes Effect? North Dakota will issue and administer permits for all the provisions for which it is authorized. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that we issued prior to the effective date of this authorization. EPA will transfer any pending permit applications, completed permits, or pertinent file information to North Dakota within 30 days of this approval. We will not issue any more new permits or new portions of permits for the provisions listed in section G. above after the effective date of this authorization. EPA and North Dakota have agreed to joint permitting and enforcement for those HSWA requirements for which North Dakota is not yet authorized. J. How Does This Action Affect Indian Country (18 U.S.C. 1151) in North Dakota? North Dakota is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. This includes, but is not limited to: 1. Lands within the exterior boundaries of the following Indian Reservations located within or abutting the State of North Dakota: a. Fort Totten Indian Reservation b. Fort Berthold Indian Reservation c. Standing Rock Indian Reservation e. Turtle Mountain Indian Reservation 2. Any land held in trust by the U.S. for an Indian tribe, and 3. Any other land, whether on or off a reservation that qualifies as Indian country within the meaning of 18 U.S.C. 1151. Therefore, this program revision does not extend to Indian country where EPA will continue to implement and administer the RCRA program in these lands. II. Corrections A. Corrections to June 25, 1990 (55 FR 25836) Authorization Document There were four sections of the North Dakota Administrative Code
(NDAC)that were incorrectly authorized as part of the authorization notice published June 25, 1990 (55 FR 25836). The State provisions 33-24-05-254, 33-24-05-255, 33-24-05-282.2, and 33-24-05-284.1 through .7 should have been excluded from the authorized program as non-delegable provisions. These State provisions are analogous to the following Part 268 sections for which States are not authorized because decisions made pursuant to the sections require examination of national concerns: 268.5 (case-by-case effective date extensions), 268.42(b) (application for alternate treatment method) and 268.44(a)-(g) (general treatment standard variances). “No migration” petitions under 268.6 are also handled by EPA. B. Corrections to September 26, 2005 (70 FR 56132) Authorization Document There were typographical errors and omissions published as part of the September 26, 2005 (70 FR 56132) authorization notice for North Dakota. The corrections for the affected entries are as follows (the corrections have been italicized): 1. In the entry for Checklist 156, “33-24-06-800” should be “ *33-24-05-800* ”; and the *citations 33-24-06-01.2.b(9)(a)(4) and .2.b(9)(c)* were omitted; 2. In the entry for Checklist 157, “33-24-02-01.3.i through fig. 1” should be “ *33-24-02-01.3.i through .3.l”* ; 3. In the entry for Checklist 158, “33-24-532.6” should be “ *33-24-05-532.6* ”; 4. In the entry for Checklist 167D, “33-24-02-02.3.d/Chart 1” should be “ *33-24-02-02/Table 1* ”; and 5. In the entry for the Consolidated Checklist addressing Boilers and Industrial Furnaces, “33-24-05-529.1.a through 529.9” should be “ *33-24-05-529.1.a through 529.8* ”. III. Incorporation by Reference A. What is Codification? Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program into the CFR. Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency
(EPA)to authorize State hazardous waste management programs. The State regulations authorized by EPA supplant the federal regulations concerning the same matter with the result that after authorization EPA enforces the authorized regulations. Infrequently, State statutory language which acts to regulate a matter is also authorized by EPA with the consequence that EPA enforces the authorized statutory provision. EPA does not authorize State enforcement authorities and does not authorize State procedural requirements. EPA codifies the authorized State program in 40 CFR part 272 and incorporates by reference State statutes and regulations that make up the approved program which is federally enforceable in accordance with Sections 3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions. B. What Decisions Have We Made in This Action? Today's action codifies EPA's authorization of North Dakota's base hazardous waste management program and its revisions to that program. This codification reflects the State program that will be in effect when EPA's authorized revisions to the North Dakota hazardous waste management program addressed in this final rule become final. Except as discussed above in sections I.G. and II, this action does not reopen any decision EPA previously made concerning the authorization of the State's hazardous waste management program. EPA is not requesting comments on its decisions published in the **Federal Register** notices referenced in section I.F of this document concerning previous revisions to the authorized program in North Dakota. EPA is incorporating by reference EPA's approval of North Dakota's hazardous waste management program by amending Subpart JJ to 40 CFR part 272. This action amends § 272.1751 and incorporates by reference North Dakota's authorized hazardous waste statutes and regulations. Section 272.1751 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, § 272.1751 references the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are evaluated as part of the approval process of the hazardous waste management program under Subtitle C of RCRA. C. What is the Effect of North Dakota's Codification on Enforcement? EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013, and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in all authorized States. With respect to enforcement actions, EPA will rely on federal sanctions, federal inspection authorities, and federal procedures rather than the State analogs to these provisions. Therefore, the EPA is not incorporating by reference North Dakota's inspection and enforcement authorities nor are those authorities part of North Dakota's approved State program which operates in lieu of the federal program. 40 CFR 272.1751(c)(2) lists these authorities for informational purposes, and also because EPA considered them in determining the adequacy of North Dakota's procedural and enforcement authorities. North Dakota's authority to inspect and enforce the State's hazardous waste management program requirements continues to operate independently under State law. D. What State Provisions Are Not Part of the Codification? The public is reminded that some provisions of North Dakota's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include:
(1)Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));
(2)Unauthorized amendments to authorized State provisions;
(3)New unauthorized State requirements; and
(4)State procedural and enforcement authorities which are necessary to establish the ability of the State's program to enforce compliance but which do not supplant the federal statutory enforcement and procedural authorities. State provisions that are “broader-in-scope” than the federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.1751(c)(3) lists the North Dakota statutory and regulatory provisions which are “broader-in-scope” than the federal program and which are not part of the authorized program being incorporated by reference. While “broader-in-scope” provisions are not part of the authorized program and cannot be enforced by EPA; the State may enforce such provisions under State law. Additionally, North Dakota's hazardous waste regulations include amendments which have not been authorized by EPA. Since EPA cannot enforce State requirements which have not been reviewed and authorized in accordance with RCRA section 3006 and 40 CFR part 271, it is important to be precise in delineating the scope of a State's authorized hazardous waste program. Regulatory provisions that have not been authorized by EPA include amendments to previously authorized State regulations as well as new State requirements. In those instances where North Dakota has made unauthorized amendments to previously authorized sections of State code, EPA is identifying in 40 CFR 272.1751(c)(4) any regulations which, while adopted by the State and incorporated by reference, include language not authorized by EPA. Those unauthorized portions of the State regulations are not federally enforceable. Thus, notwithstanding the language in the North Dakota hazardous waste regulations incorporated by reference at 40 CFR 272.1751(c)(1), EPA will only enforce those portions of the State regulations that are actually authorized by EPA. For the convenience of the regulated community, the actual State regulatory text authorized by EPA for the citations listed at 272.1751(c)(4) (i.e., without the unauthorized amendments) is compiled as a separate document, *Addendum to the EPA Approved North Dakota Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program, July 2006* . This document is available from EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202. State provisions that are not incorporated by reference in today's rule at 40 CFR 272.1751(c)(1), or that are not listed in 40 CFR 272.1751(c)(2) (“procedural and enforcement”), 40 CFR 272.1751(c)(3) (“broader in scope”) or 40 CFR 272.1751(c)(4) (“unauthorized amendments to authorized State provisions”), are considered new unauthorized State requirements. These requirements are not federally enforceable. E. What Will be the Effect of Federal HSWA Requirements on the Codification? With respect to any requirement(s) pursuant to the Hazardous and Solid Waste Amendments of 1984
(HSWA)for which the State has not yet been authorized and which EPA has identified as taking effect immediately in States with authorized hazardous waste management programs, EPA will enforce those federal HSWA standards until the State is authorized for those provisions. The codification does not affect federal HSWA requirements for which the State is not authorized. EPA has authority to implement HSWA requirements in all States, including States with authorized hazardous waste management programs, until the States become authorized for such requirements or prohibitions, unless EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the federal program. A HSWA requirement or prohibition, unless identified by EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by EPA (50 FR 28702, July 15, 1985). Some existing State requirements may be similar to the HSWA requirements implemented by EPA. However, until EPA authorizes those State requirements, EPA enforces the HSWA requirements and not the State analogs. IV. Statutory and Executive Order Reviews The Office of Management and Budget
(OMB)has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action 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 action authorizes preexisting 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). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Under RCRA 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ). The Congressional Review Act, 5 U.S.C. 801, *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document 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 in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective April 14, 2008. List of Subjects in 40 CFR Parts 271 and 272 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Incorporation by reference, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b). Dated: January 22, 2008. Carol Rushin, Acting Regional Administrator, Region 8. For the reasons set forth in the preamble, under the authority at 42 U.S.C. 6912(a), 6926, and 6974(b), EPA is granting final authorization under part 271 to the State of North Dakota for revisions to its hazardous waste program under the Resource Conservation and Recovery Act and is amending 40 CFR part 272 as follows: PART 272—APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS 1. The authority citation for part 272 continues to read as follows: Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b). Subpart JJ—[Amended] 2. Subpart JJ is amended by adding § 272.1751 to read as follows: § 272.1751 North Dakota State-administered program: Final authorization.
(a)Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), North Dakota has final authorization for the following elements as submitted to EPA in North Dakota's base program application for final authorization which was approved by EPA effective on October 19, 1984. Subsequent program revision applications were approved effective on August 24, 1990, July 6, 1992, June 6, 1994, March 20, 2000, November 25, 2005, and April 14, 2008.
(b)The State of North Dakota has primary responsibility for enforcing its hazardous waste management program. However, EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory and regulatory provisions, regardless of whether the State has taken its own actions, as well as in accordance with other statutory and regulatory provisions.
(c)*State Statutes and Regulations.*
(1)The North Dakota statutes and regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921, *et seq.* The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the North Dakota statutes that are incorporated by reference from the Matthew Bender & Company Inc., P. O. Box 7587, Charlottesville, VA, 22906-7587, phone number:
(800)833-9844. You may obtain copies of the North Dakota regulations that are incorporated by reference in this paragraph from the North Dakota Legislative Counsel, Second Floor, State Capitol, 600 E Boulevard, Bismarck ND 58505, phone:
(701)328-2916. You may inspect a copy at EPA Region 8, from 7 a.m. to 4 p.m., 1595 Wynkoop Street, Denver, CO, 80202, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.*
(i)The Binder entitled “EPA Approved North Dakota Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program”, dated July 2006.
(ii)[Reserved]
(2)EPA considered the following statutes and regulations in evaluating the State program but is not incorporating them herein for enforcement purposes:
(i)North Dakota Century Code, 1998 Replacement, Volume 13A, North Dakota Constitution, Article XI: Sections 5 and 6.
(ii)North Dakota Century Code, 2002 Replacement, Volume 4A, Chapter 23-01 “Department of Health” Section 23-01-04.1, (except (6)).
(iii)North Dakota Century Code, Volume 4A, 2002 Replacement, as amended by the 2005 Pocket Supplement. Chapter 23-20.3 “Hazardous Waste”: Sections 23-20.3-01, (except
(5)and (6)); 23-20.3-02, (except (1), (9), (11), (12), and (17)); 23-20.3-03; 23-20.3-04; 23-20.3-05(3), (5), (6), and (8); 23-20.3-06; 23-20.3-07; 23-20.3-08; 23-20.3-09; and 23-20.3-10.
(iv)North Dakota Century Code, Volume 4A, 2002 Replacement. Chapter 23-29 “Solid Waste Management”: Section 23-29-04.
(v)North Dakota Century Code, Volume 5, 1991 Replacement. Chapter 28-32 “Administrative Agencies Practice Act”: Section 28-32-21.1.
(vi)North Dakota Century Code, Volume 6, 1996 Replacement. Chapter 32-40 “Environmental Law Enforcement”: Sections 32-40-03; 32-40-04; 32-40-05; 32-40-06; 32-40-07; 32-40-08; 32-40-09; 32-40-10; and 32-40-11.
(vii)North Dakota Century Code, Volume 9A, 2001 Replacement, as amended by the 2003 Pocket Supplement. Chapter 44-04 “Duties, Records, and Meetings”: Sections 44-04-18; 44-04-18.1; 44-04-18.2; 44-04-18.3; 44-04-18.4; 44-04-18.5; 44-04-18.6; 44-04-18.7; 44-04-18.8; 44-04-19; and 44-04-19.1.
(viii)North Dakota Administrative Code (NDAC), Article 33-24, Hazardous Waste Management, as amended through December 1, 2003: sections 33-24-01-15; 33-24-01-16; 33-24-06-05, (except .1.c); 33-24-06-06.2 and .3; 33-24-06-09; 33-24-06-15, (except introductory paragraph through .1.a); 33-24-07-03.4; 33-24-07-04 through 33-24-07-14; and 33-24-07-25 through 33-24-07-27.
(3)The following statutory and regulatory provisions are broader in scope than the federal program, are not part of the authorized program, are not incorporated by reference and are not federally enforceable:
(i)North Dakota Century Code, 2002 Replacement, Volume 4A, Chapter 23-01: “Department of Health”, “Rulemaking Authority and Procedure” Section 23-01-04.1(6).
(ii)North Dakota Century Code, Volume 4A, 2002 Replacement, as amended by the 2005 Pocket Supplement. Chapter 23-20.3 “Hazardous Waste”: Sections 23-20.3-02 (1); 23-20.3-05.1; 23-20.3-05.2; and 23-20.3-05.3.
(iii)North Dakota Administrative Code (NDAC), Article 33-24, “Hazardous Waste Management”, as amended through December 1, 2003, sections 33-24-04-02.3, 33-24-06-14.3.a(4) and 33-24-06-21.
(iv)North Dakota's hazardous waste regulations set forth additional transporter requirements including permit requirements at 33-24-04-02. The transporter permit requirements are broader in scope than the federal program.
(4)*Unauthorized State Amendments.*
(i)The authorized provisions at sections of the NDAC Article 33:24, as amended through December 1, 2003 include amendments that are not approved by EPA. Such unauthorized amendments are not part of the State's authorized program and are, therefore, not federally enforceable. Thus, notwithstanding the language in the North Dakota hazardous waste regulations incorporated by reference at paragraph (c)(1)(i) of this section, EPA will enforce the State regulations that are actually authorized by EPA. The effective dates of the State's authorized provisions are listed in the following table. North Dakota Administrative Code (NDAC), Article 33-24 State citation Description Effective date 33-24-02-07.4 introductory paragraph Residues of Hazardous Waste in Empty Containers 10/1/86 33-24-03-12.2 Accumulation Time 1/1/84 33-24-05-421 Applicability of Definitions 12/1/91 33-24-06-17.2.y(8) Contents of Permit Application 1/1/84
(ii)The actual State regulatory text authorized by EPA (i.e., without the unauthorized amendments) is available as a separate document, *Addendum to the EPA Approved North Dakota Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program, July 2006.* This document is available from EPA Region 8, from 9 a.m. to 4 p.m., 1595 Wynkoop Street, Denver, Colorado 80202.
(5)*Memorandum of Agreement.* The Memorandum of Agreement between EPA Region 8 and the State of North Dakota, signed by the State of North Dakota State Department of Health on June 6, 2003, and by the EPA Regional Administrator on August 29, 2003, although not incorporated by reference, is referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921, *et seq.*
(6)*Statement of Legal Authority.* “Attorney General's Statement: Hazardous Waste Management Program” signed by the Attorney General of North Dakota on June 8, 1984, and revisions, supplements, and addenda to that Statement dated February 22, 1989, February 11, 1994, October 13, 1999, April 23, 2004, and August 19, 2004, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921, *et seq.*
(7)*Program Description.* The Program Description and any other materials submitted as supplements thereto, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921, *et seq.* 3. Appendix A to part 272 is amended by adding in alphabetical order, “North Dakota” and its listing to read as follows: Appendix A to Part 272—State Requirements North Dakota
(a)The statutory provisions include: North Dakota Century Code, Volume 4A, 2002 Replacement. Chapter 23-20.3 “Hazardous Waste”: Sections 23-20.3-05(1), (2), (4), (7), and (9). Copies of the North Dakota statutes that are incorporated by reference are available from the Matthew Bender & Company Inc., P.O. Box 7587, Charlottesville, VA 22906-7587, phone number:
(800)833-9844.
(b)The regulatory provisions include: North Dakota Administrative Code (NDAC), Article 33-24, Hazardous Waste Management, as amended through December 1, 2003. Please note the following: For a few regulations, the authorized regulation is an earlier version of the North Dakota State regulation. For these regulations, EPA authorized the version of the regulations that appear in the North Dakota Administrative Code dated July 1, 1997. North Dakota made later changes to these regulations, but these changes have not been authorized by EPA. The regulations where the authorized regulation is an earlier version of the regulation are noted below by inclusion in parentheses of July 1, 1997 after the regulatory citations. Chapter 33-24-01—General Provisions: Sections 33-24-01-01 through 33-24-01-14. Chapter 33-24-02—Identification and Listing of Hazardous Waste; 33-24-02-01; 33-24-02-02; 33-24-02-03 except .1.b(3) and (6); 33-24-02-04 through 33-24-02-06; 33-24-02-07; 33-24-02-08 through 33-24-02-19; 33-24-02-22; and Appendices I through V. Chapter 33-24-03—Standards for Generators: Sections 33-24-03-01; 33-24-03-02; 33-24-03-03.1 and .2; 33-24-03-03.3, (except the phrases “and a transporter permit” and “and applied for a permit”); 33-24-03-03.4; 33-24-03-04 through 33-24-03-12; 33-24-03-13, (except the phrase “March first of each even-numbered year” in .2); 33-24-03-14 through 33-24-03-24; 33-24-03-30; 33-24-03-40; and Appendix I. Chapter 33-24-04—Standards for Transporters: Sections 33-24-04-01, (except .4); 33-24-04-02.1, (except the phrase “, a transporter permit, and a registration certificate”); 33-24-04-02.2, (except the phrases “and a registration certificate, or a transporter permit,” and “and issue a registration certificate”); and 33-24-04-03 through 33-24-04-08. Chapter 33-24-05—Standards for Treatment, Storage, and Disposal Facilities and for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities: Sections 33-24-05-01; 33-24-05-02, (except the second sentence); 33-24-05-03 through 33-24-05-10; 33-24-05-15 through 33-24-05-20; 33-24-05-26 through 33-24-05-31; 33-24-05-37 through 33-24-05-44; 33-24-05-47 through 33-24-05-50; 33-24-05-51, (except Table 1); 33-24-05-51, Table 1 (July 1, 1997); 33-24-05-52 through 33-24-05-55; 33-24-05-56, (except .11); 33-24-05-57 through 33-24-05-69; 33-24-05-74 through 33-24-05-81; 33-24-05-89 through 33-24-05-93; 33-24-05-94, (except .4.b); 33-24-05-95 through 33-24-05-98; 33-24-05-103 through 33-24-05-115; 33-24-05-118 through 33-24-05-128; 33-24-05-130 through 33-24-05-138; 33-24-05-144 through 33-24-05-151; 33-24-05-160 through 33-24-05-170; 33-24-05-176 through 33-24-05-188; 33-24-05-201 through 33-24-05-204; 33-24-05-230; 33-24-05-235; 33-24-05-250 through 33-24-05-252; 33-24-05-253, (except .3); 33-24-05-256, (except .1.b(2)); 33-24-05-258, (except .4.b(2)); 33-24-05-265; 33-24-05-270 through 33-24-05-279; 33-24-05-280, (except .9); 33-24-05-281; 33-24-05-282, (except .2); 33-24-05-283; 33-24-05-284.8 through .13; 33-24-05-285; 33-24-05-286; 33-24-05-288 through 33-24-05-290; 33-24-05-300 through 33-24-05-303; 33-24-05-400, (except .4); 33-24-05-401 through 33-24-05-406; 33-24-05-420 through 33-24-05-435; 33-24-05-450 through 33-24-05-460; 33-24-05-475 through 33-24-05-477; 33-24-05-501 through 33-24-05-506; 33-24-05-525 through 33-24-05-537; 33-24-05-550 through 33-24-05-553; 33-24-05-554, (except .1.b); 33-24-05-555; 33-24-05-600; 33-24-05-610 through 33-24-05-612; 33-24-05-620 through 33-24-05-624; 33-24-05-630 through 33-24-05-632; 33-24-05-640 through 33-24-05-647; 33-24-05-650 through 33-24-05-667; 33-24-05-670 through 33-24-05-675; 33-24-05-680; 33-24-05-681; 33-24-05-701 through 33-24-05-705; 33-24-05-708 through 33-24-05-720; 33-24-05-730 through 33-24-05-740; 33-24-05-750 through 33-24-05-756; 33-24-05-760 through 33-24-05-762; 33-24-05-770; 33-24-05-780; 33-24-05-781; 33-24-05-800 through 33-24-05-802; 33-24-05-820 through 33-24-05-826; 33-24-05-850; 33-24-05-855 through 33-24-05-857; 33-24-05-860; 33-24-05-865; 33-24-05-866; 33-24-05-870; 33-24-05-875; 33-24-05-880; 33-24-05-885; 33-24-05-890; 33-24-05-895 through 33-24-05-900; 33-24-05-905; 33-24-05-910; 33-24-05-915; 33-24-05-916; and Appendices I through VIII, X through XIII, XVI through XXIV; and XXVI through XXIX. Chapter 33-24-06—Permits: Sections 33-24-06-01, (except .2.a); 33-24-06-01.2.a (July 1, 1997); 33-24-06-02 through 33-24-06-04; 33-24-06-05.1.c; 33-24-06-06, (except .2 and .3); 33-24-06-07; 33-24-06-08; 33-24-06-10 through 33-24-06-13; 33-24-06-14, (except .3.a(4)); 33-24-06-14, Appendix I; 33-24-06-15 introductory paragraph through .1.a; 33-24-06-16.5 through .7; 33-24-06-17, (except .2.k and .2.z); 33-24-06-18 through 33-24-06-20; 33-24-06-30 through 33-24-06-35; and 33-24-06-100. Chapter 33-24-07—Permitting Procedures: Sections 33-24-07-01; 33-24-07-02; and 33-24-07-03, (except .4). Copies of the North Dakota regulations that are incorporated by reference are available from North Dakota Legislative Counsel, Second Floor, State Capitol, 600 E Boulevard, Bismarck, ND 58505, phone number:
(701)328-2916. [FR Doc. E8-2160 Filed 2-13-08; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 20 [PS Docket No. 07-114; CC Docket No. 94-102; WC Docket No. 05-196; FCC 07-166] Wireless E911 Location Accuracy Requirements AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: In this document, the Federal Communications Commission (Commission) amends its rules in order to require wireless Enhanced 911
(E911)Phase II location accuracy and reliability standards at a geographical level defined by the coverage area of a Public Safety Answering Point (PSAP). The Commission takes this step in order to ensure an appropriate and consistent compliance methodology with respect to location accuracy standards. DATES: The rules in 47 CFR 20.18(h) contain information collection requirements that have not been approved by the Office of Management and Budget (OMB). The Federal Communications Commission will publish a document in the **Federal Register** announcing the effective date. FOR FURTHER INFORMATION CONTACT: Carol Simpson, Policy Division, Public Safety and Homeland Security Bureau,
(202)418-2391. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report and Order* (Order) in PS Docket No. 07-114, CC Docket No. 94-102, WC Docket No. 05-196, FCC 07-166, adopted September 11, 2007, and released November 20, 2007. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. This document may also be obtained from the Commission's duplicating contractor, Best Copy and Printing, Inc., in person at 445 12th Street, SW., Room CY-B402, Washington, DC 20554, via telephone at
(202)488-5300, via facsimile at
(202)488-5563, or via e-mail at *FCC@BCPIWEB.COM* . Alternative formats (computer diskette, large print, audio cassette, and Braille) are available to persons with disabilities by sending an e-mail to *FCC504@fcc.gov* or calling the Consumer and Governmental Affairs Bureau at
(202)418-0530, TTY
(202)418-0432. This document is also available on the Commission's Web site at *http://www.fcc.gov* . 1. On June 1, 2007, we released a *Notice of Proposed Rulemaking*
(NPRM)seeking comment on how to improve 911 location accuracy and reliability. We found that although measuring location accuracy at the PSAP level may present challenges, the public interest demands that carriers and technology providers strive to ensure that when wireless callers dial 911, emergency responders are provided location information that enables them to reach the site of the emergency as quickly as possible. In recognition of the fact that many carriers are not currently measuring and testing location accuracy at the PSAP service area level, we sought comment on whether we should defer enforcement of § 20.18(h) if we adopted our tentative conclusion to require compliance at the PSAP level. Compliance With § 20.18(h) at the PSAP Level 2. Consistent with the *NPRM* , we find that carriers should be required to meet the Commission's Phase II accuracy requirements set forth in § 20.18(h) at the PSAP service area level. Use of a PSAP-based geographic area for compliance purposes is most consistent with the purpose of the E911 rules, which, as we stated in the *NPRM* , is to ensure that PSAPs receive accurate, meaningful location information in order to dispatch local emergency responders to the correct location. Although § 20.18(h) does not explicitly state that accuracy must be measured and tested at the PSAP level, it is unreasonable to think that the Commission ever envisioned averaging of location accuracy on a large geographic basis, such as a carrier's entire national footprint. 3. As we stated in the *NPRM* , measuring over large geographic areas such as a carrier's entire national footprint could allow a service provider to claim compliance with the Commission's accuracy requirements even though the carrier cannot meet them in individual PSAP areas, or even entire states. In those circumstances, certain PSAPs receive either meaningless location information or no location information. Even worse, PSAPs may receive location information yet not know that the information is not reliable. Any of these results could extend the amount of time necessary for a 911 call taker to obtain the location of the caller or the site of an emergency—including cases as serious as callers attempting to report criminal activity impacting homeland security—and thus result in longer dispatch times, and perhaps even no response by public safety officials who lack sufficient information to locate the caller. In fact, PSAPs often answer calls with: “911. What is the address of your emergency?” because they cannot rely on carriers to meet location accuracy requirements in their PSAP service area. A lack of meaningful data regarding a caller's location would thus render the purpose of the rule—which is intended to ensure that carriers provide meaningful location information to emergency responders—a nullity. Measurement of compliance at the PSAP level is the most appropriate way to avoid this otherwise absurd result consistent with the purpose of the rule. 4. The record in this proceeding supports our conclusion that requiring PSAP-level accuracy is necessary to ensure that the goal of providing meaningful location information to emergency responders is met. The public safety organizations that filed comments in response to the *NPRM* are nearly unanimous in their support for our tentative conclusion. These organizations represent a cross-section of the public safety community, ranging from nationwide associations such as APCO and NENA, to first responders in densely populated urban areas such as New York City, Chicago, and Orlando, to emergency response organizations in smaller communities such as Lufkin, Texas and San Juan County, New Mexico. The public safety commenters are uniquely qualified to attest to the importance of accurate and reliable location information. Their comments support our observation in the *NPRM* that averaging location accuracy over large geographic areas is likely to produce inadequate and unreliable location information in some parts of a provider's service area. The New York City Police Department, for example, emphasizes how difficult it is for PSAPs to ensure that the location information they receive from carriers is accurate and reliable. And *Consumer Reports* estimates that accurate location information is not delivered at the PSAP level in nearly half of the country. 5. Some commenters support measuring and testing location accuracy on a statewide basis, rather than at the PSAP service area level. These commenters, however, fail to address how measurement at the state level furthers the goals of § 20.18(h). State-level compliance would not solve the problem that APCO described in its 2004 request for declaratory ruling and that public safety commenters in this proceeding have also identified: State-level compliance would still allow service providers to average accuracy results over a geographic area large enough to render the location information provided to some PSAPs within the state “virtually useless.” As a result, carriers may achieve acceptable levels of location accuracy in urban areas of a given state, yet provide location information of limited or no use to first responders in rural areas. Indeed, this approach would particularly shortchange residents of larger states with a significant number of PSAPs as they would be more likely to reside in a PSAP where location information of limited or no use would be provided than would residents of smaller states. Moreover, if it is possible for carriers to comply with location accuracy requirements on a statewide basis in small states, this suggests that it would be feasible for carriers to comply with location accuracy requirements at the PSAP level across the nation were they willing to invest appropriate resources. These commenters also provide no persuasive reasons or evidence why the Commission should require compliance at any level other than the PSAP level. In the absence of any such evidence, we reject this approach. 6. Commenters also argue that we should not require location accuracy compliance at the PSAP level before completing the second phase of this rulemaking, or that we should first convene an industry forum or advisory council to assess the possibilities for improving 911 location accuracy. We reject this argument as without merit. The step we take today is necessary to ensure first responders receive meaningful location accuracy information as soon as possible, and should not be delayed while we explore additional issues regarding improving location accuracy. By making clear that compliance with § 20.18(h) must be measured at the PSAP level, we also effectively “set the stage” for the examination that lies ahead, ensuring that all stakeholders are properly discussing location accuracy at the correct geographic level. 7. Our action today, however, does not depend on that examination, nor does it preclude a more comprehensive approach to our E911 location accuracy rules, as some commenters suggest, or otherwise “plac[e] the cart before the horse.” Although the *NPRM* sought comment on whether hybrid location technologies can provide even *better* location accuracy results, we do not resolve those questions in the *Order* . We only require service providers to comply with § 20.18(h) at what may be a smaller geographic area than they are currently using to measure their compliance, with whatever location technology they are now using to locate 911 callers. More specifically, we are not mandating any specific location technology or approach in the *Order* , nor are we requiring carriers to implement new location technologies. For example, carriers that currently employ a network-based location solution need not incorporate handset-based location technologies into their networks to comply with our ruling in the *Order* , or vice versa. And, as noted above, our determination here will serve to better inform the discussion going forward. For these reasons, we are not persuaded that the action we take today is premature. 8. We also reject as without merit commenters' assertions that we should not move forward because the location technologies that are currently available are not capable of satisfying the requirements of § 20.18(h) at the PSAP service area level. In the first instance, our decision to allow carriers five years to achieve compliance at the PSAP level substantially mitigates these concerns. Furthermore, the record indicates that in many cases, PSAP-level compliance is technologically feasible today and would require only the investment of additional financial resources. In this regard, we note that while it is obviously in carriers' financial interests to argue that any meaningful requirement will not be possible to meet, carriers too often blur the distinction between that which is infeasible and that which simply requires the expenditure of additional resources. Finally, even though the record indicates that some service providers are not currently prepared to meet our current location accuracy requirements at the PSAP level, that fact alone should not prevent us from establishing the PSAP service areas as the geographic basis for compliance with the § 20.18(h) location accuracy requirements. Indeed, the Commission has consistently found it appropriate to set aggressive benchmarks for carriers and providers when public safety is at stake, and it is our judgment based on the record as well as our experience regarding the implementation of similar public safety mandates that carriers will be able to meet the compliance deadline and interim benchmarks set forth in the *Order* . While we acknowledge that meeting the deadline and benchmarks may require the investment of significant resources by certain carriers, we believe that such expenditures are more than justified by the accompanying public safety benefits. Furthermore, we believe that the *Order* will have a catalyzing effect on efforts to improve location accuracy measurement because it will create significant incentives for industry. 9. In short, the public interest demands that we no longer allow service providers to nullify our longstanding location accuracy requirements by measuring their compliance over unreasonably large geographic areas. While deployment of E911 Phase II service continues to expand, such service has no significance to local emergency responders if the location information so provided does not permit 911 call takers to locate the caller. In the interests of public safety and homeland security, our action today thus closes any “loopholes” that may allow service providers to avoid providing meaningful location accuracy information. It is clear based on the inability to date of wireless carriers and technology vendors to provide meaningful PSAP-level accuracy that it is incumbent on us to clearly establish that compliance must be achieved at the PSAP level. Compliance Deadline and Interim Benchmarks 10. The record in this proceeding contains encouraging evidence that location technology providers have developed and are developing technologies that can achieve PSAP-level compliance. The record also reflects that the technology exists to test, monitor, and report compliance at the PSAP level. Moreover, as noted above, PSAP-level compliance is possible in many instances through the deployment of existing resources and technologies presently available to carriers. We recognize, however, that many service providers are not currently measuring and testing location accuracy at the PSAP level, and that meeting our location accuracy requirements in every PSAP may take time to achieve. We do not intend to penalize carriers that are making good faith efforts to comply with our location accuracy requirements at the PSAP level. At the same time, we must ensure that carriers begin to transition to PSAP-level compliance without delay. 11. Accordingly, we establish a deadline of September 11, 2012 for achieving compliance with § 20.18(h) at the PSAP level. We find that allowing sufficient time for carriers to achieve compliance alleviates parties' concerns about the challenges of PSAP-level compliance with § 20.18(h), yet still leads to appreciable and swift improvements to E911 service that will result from compliance at the appropriate geographic level. The record in this proceeding supports giving carriers five years to achieve PSAP-level compliance. 12. In order to ensure that carriers are making progress toward compliance with the Commission's location accuracy requirements at the PSAP level, we establish a series of interim requirements, which carriers must also meet in order to comply with § 20.18(h). These benchmarks consist of the following: • By September 11, 2008—one year from the date of adoption of the *Order* —each carrier subject to the rule must satisfy the location accuracy requirements of § 20.18(h) within each Economic Area
(EA)in which that carrier operates. • By September 11, 2009—two years from the date of adoption of this *Order* —each carrier subject to the rule must file with the Commission a report describing the status of its ongoing efforts to comply with § 20.18(h). • By September 11, 2010—three years from the date of adoption of the *Order* —each carrier subject to the rule must
(1)satisfy the location accuracy requirements of § 20.18(h) within each Metropolitan Statistical Area
(MSA)and Rural Service Area
(RSA)in which that carrier operates;
(2)demonstrate PSAP-level compliance with § 20.18(h) within at least 75% of the PSAPs the carrier serves; and
(3)demonstrate accuracy in all PSAP service areas within at least 50% of the applicable location accuracy standard (in other words, a carrier subject to the accuracy standard for handset-based technologies in § 20.18(h)(2), which is 50 meters for 67 percent of calls, must achieve location accuracy of 75 meters for 67 percent of calls in all PSAPs in order to comply with this requirement). • By September 11, 2011—four years from the date of adoption of the *Order* —each carrier subject to the rule must file with the Commission a report describing the status of its ongoing efforts to comply with § 20.18(h). • By September 11, 2012—five years from the date of adoption of the *Order* —each carrier subject to the rule must be in full compliance with § 20.18(h) at the PSAP service area level. In determining their compliance with these benchmarks and preparing their reports to the Commission, carriers must include only those PSAPs that are capable of receiving Phase II location data. I. Procedural Matters A. Paperwork Reduction Act Analysis 13. This document contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget
(OMB)to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” B. Congressional Review Act 14. The Commission will send a copy of this Second Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act (“CRA”), *see* 5 U.S.C. 801(a)(1)(A). II. Final Regulatory Flexibility Analysis 15. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis
(IRFA)was included in the *NPRM* in PS Docket No. 07-114; CC Docket No. 94-102; and WC Docket No. 05-196. The Commission sought written public comment on the proposals in these dockets, including comment on the IRFA. This Final Regulatory Flexibility Analysis
(FRFA)conforms to the RFA. Need for, and Objectives of, the Rules 16. In the NPRM, we sought comment on how to best ensure that public safety answering points (PSAPs) receive location information that is as accurate as possible for all wireless E911 calls. The objective was to ensure that PSAPs receive reliable and accurate location information irrespective of the location of the caller or the technology that may be used. 17. The *Report and Order* requires that Commercial Mobile Radio Service
(CMRS)carriers comply by September 11, 2012, with § 20.18(h) of the Commission's rules at the PSAP service area level and adopts interim benchmarks in each of the preceding years to achieve this level. Section 20.18(h) sets forth the standards for Phase II wireless E911 location accuracy and reliability. This action responds to a petition for declaratory ruling filed by the Association of Public-Safety Communications Officials-International, Inc.
(APCO)expressing concern that by measuring and testing location accuracy over geographic areas larger than PSAP service areas, a wireless carrier can assert that it satisfies the requirements of § 20.18(h) even when it is not meeting the location accuracy requirements in substantial segments of its service area. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 18. There were no comments filed that specifically addressed the IRFA. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 19. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the Small Business Administration (SBA). Telecommunications Service Entities Wireless Telecommunications Service Providers 20. Below, for those services subject to auctions, we note that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated. 21. *Cellular Licensees.* The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this category and size standard, the great majority of firms can be considered small. Also, according to Commission data, 437 carriers reported that they were engaged in the provision of cellular service, Personal Communications Service (PCS), or Specialized Mobile Radio
(SMR)Telephony services, which are placed together in the data. We have estimated that 260 of these are small, under the SBA small business size standard. 22. *Common Carrier Paging.* The SBA has developed a small business size standard for wireless firms within the broad economic census category, “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. In the Paging *Third Report and Order,* we developed a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these small business size standards. An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies claiming small business status won. Also, according to Commission data, 375 carriers reported that they were engaged in the provision of paging and messaging services. Of those, we estimate that 370 are small, under the SBA-approved small business size standard. 23. *Wireless Telephony.* Wireless telephony includes cellular, personal communications services (PCS), and specialized mobile radio
(SMR)telephony carriers. As noted earlier, the SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 445 carriers reported that they were engaged in the provision of wireless telephony. We have estimated that 245 of these are small under the SBA small business size standard. 24. *Broadband Personal Communications Service.* The broadband Personal Communications Service
(PCS)spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. 25. *Narrowband Personal Communications Services.* To date, two auctions of narrowband personal communications services
(PCS)licenses have been conducted. For purposes of the two auctions that have already been held, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission has awarded a total of 41 licenses, out of which 11 were obtained by small businesses. To ensure meaningful participation of small business entities in future auctions, the Commission has adopted a two-tiered small business size standard in the *Narrowband PCS Second Report and Order.* A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. In the future, the Commission will auction 459 licenses to serve Metropolitan Trading Areas
(MTAs)and 408 response channel licenses. There is also one megahertz of narrowband PCS spectrum that has been held in reserve and that the Commission has not yet decided to release for licensing. The Commission cannot predict accurately the number of licenses that will be awarded to small entities in future auctions. However, four of the 16 winning bidders in the two previous narrowband PCS auctions were small businesses, as that term was defined. The Commission assumes, for purposes of this analysis, that a large portion of the remaining narrowband PCS licenses will be awarded to small entities. The Commission also assumes that at least some small businesses will acquire narrowband PCS licenses by means of the Commission's partitioning and disaggregation rules. 26. *Rural Radiotelephone Service.* The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). The Commission uses the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” *i.e.* , an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein. 27. *Air-Ground Radiotelephone Service.* The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service. We will use SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” *i.e.* , an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and we estimate that almost all of them qualify as small under the SBA small business size standard. 28. *Offshore Radiotelephone Service.* This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. There are presently approximately 55 licensees in this service. We are unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. Wireline Carriers and Service Providers 29. The SBA has developed a small business size standard for wireline firms within the broad economic census category, “Wired Telecommunications Carriers.” Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. Census Bureau data for 2002 show that there were 2,432 firms in this category that operated for the entire year. Of this total, 2,395 firms had employment of 999 or fewer employees, and 37 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. 30. We have included small incumbent local exchange carriers in this present RFA analysis. As noted above, a “small business” under the RFA is one that, *inter alia,* meets the pertinent small business size standard ( *e.g.* , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. 31. *Incumbent Local Exchange Carriers (LECs).* Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our action. 32. *Competitive Local Exchange Carriers, Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.”* Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 93 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1,500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our action. 33. *Local Resellers.* The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 143 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 141 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers are small entities that may be affected by our action. 34. *Toll Resellers.* The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 770 carriers have reported that they are engaged in the provision of toll resale services. Of these, an estimated 747 have 1,500 or fewer employees and 23 have more than 1,500 employees. Consequently, the Commission estimates that the majority of toll resellers are small entities that may be affected by our action. 35. *Payphone Service Providers (PSPs).* Neither the Commission nor the SBA has developed a small business size standard specifically for payphone services providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 613 carriers have reported that they are engaged in the provision of payphone services. Of these, an estimated 609 have 1,500 or fewer employees and four have more than 1,500 employees. Consequently, the Commission estimates that the majority of payphone service providers are small entities that may be affected by our action. 36. *Interexchange Carriers (IXCs).* Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 316 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 292 have 1,500 or fewer employees and 24 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by our action. 37. *Operator Service Providers (OSPs).* Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 23 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 20 have 1,500 or fewer employees and three have more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by our action. 38. *Prepaid Calling Card Providers.* Neither the Commission nor the SBA has developed a small business size standard specifically for prepaid calling card providers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 89 carriers have reported that they are engaged in the provision of prepaid calling cards. Of these, 88 are estimated to have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that all or the majority of prepaid calling card providers are small entities that may be affected by our action. 39. *800 and 800-Like Service Subscribers.* Neither the Commission nor the SBA has developed a small business size standard specifically for 800 and 800-like service (“toll free”) subscribers. The appropriate size standard under SBA rules is for the category Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. The most reliable source of information regarding the number of these service subscribers appears to be data the Commission collects on the 800, 888, and 877 numbers in use. According to our data, at the end of January 1999, the number of 800 numbers assigned was 7,692,955; the number of 888 numbers assigned was 7,706,393; and the number of 877 numbers assigned was 1,946,538. We do not have data specifying the number of these subscribers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of toll free subscribers that would qualify as small businesses under the SBA size standard. Consequently, we estimate that there are 7,692,955 or fewer small entity 800 subscribers; 7,706,393 or fewer small entity 888 subscribers; and 1,946,538 or fewer small entity 877 subscribers. International Service Providers 40. The Commission has not developed a small business size standard specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $13.5 million or less in average annual receipts. 41. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action. 42. The second category of Other Telecommunications “comprises establishments primarily engaged in
(1)providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or
(2)providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. Of this total, 303 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action. Cable and OVS Operators 43. *Cable and Other Program Distribution.* The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.” The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, under this size standard, the majority of firms can be considered small. 44. *Cable Companies and Systems.* The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small. 45. *Cable System Operators.* The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. 46. *Open Video Services (OVS).* In 1996, Congress established the open video system
(OVS)framework, one of four statutorily recognized options for the provision of video programming services by local exchange carriers (LECs). The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard of Cable and Other Program Distribution Services, which consists of such entities having $13.5 million or less in annual receipts. The Commission has certified 25 OVS operators, with some now providing service. Broadband service providers
(BSPs)are currently the only significant holders of OVS certifications or local OVS franchises. As of June, 2005, BSPs served approximately 1.4 million subscribers, representing 1.5 percent of all MVPD households. Affiliates of Residential Communications Network, Inc. (RCN), which serves about 371,000 subscribers as of June, 2005, is currently the largest BSP and 14th largest MVPD. RCN received approval to operate OVS systems in New York City, Boston, Washington, DC and other areas. The Commission does not have financial information regarding the entities authorized to provide OVS, some of which may not yet be operational. We thus believe that at least some of the OVS operators may qualify as small entities. Internet Service Providers 47. *Internet Service Providers.* The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs “provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity.” Under the SBA size standard, such a business is small if it has average annual receipts of $23 million or less. According to Census Bureau data for 2002, there were 2,529 firms in this category that operated for the entire year. Of these, 2,437 firms had annual receipts of under $10 million, and 47 firms had receipts of $10 million or more but less then $25 million. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action. 48. *All Other Information Services.* “This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives).” The SBA has developed a small business size standard for this category; that size standard is $6.5 million or less in average annual receipts. According to Census Bureau data for 1997, there were 195 firms in this category that operated for the entire year. Of these, 172 had annual receipts of under $5 million, and an additional nine firms had receipts of between $5 million and $9,999,999. Consequently, we estimate that the majority of these firms are small entities that may be affected by our action. Equipment Manufacturers 49. *Wireless Communications Equipment Manufacturing* . The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: all such firms having 750 or fewer employees. According to Census Bureau data for 2002, there were a total of 1,041 establishments in this category that operated for the entire year. Of this total, 1,010 had employment of under 500, and an additional 13 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small. 50. *Telephone Apparatus Manufacturing* . The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing wire telephone and data communications equipment. These products may be standalone or board-level components of a larger system. Examples of products made by these establishments are central office switching equipment, cordless telephones (except cellular), PBX equipment, telephones, telephone answering machines, LAN modems, multi-user modems, and other data communications equipment, such as bridges, routers, and gateways.” The SBA has developed a small business size standard for Telephone Apparatus Manufacturing, which is: all such firms having 1,000 or fewer employees. According to Census Bureau data for 2002, there were a total of 518 establishments in this category that operated for the entire year. Of this total, 511 had employment of under 1,000, and an additional 7 had employment of 1,000 to 2,499. Thus, under this size standard, the majority of firms can be considered small. 51. *Semiconductor and Related Device Manufacturing* . These establishments manufacture “computer storage devices that allow the storage and retrieval of data from a phase change, magnetic, optical, or magnetic/optical media.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 500 or fewer employees. According to Census Bureau data for 1997, there were 1,082 establishments in this category that operated for the entire year. Of these, 987 had employment of under 500, and 52 establishments had employment of 500 to 999. 52. *Computer Storage Device Manufacturing* . These establishments manufacture “computer storage devices that allow the storage and retrieval of data from a phase change, magnetic, optical, or magnetic/optical media.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 1997, there were 209 establishments in this category that operated for the entire year. Of these, 197 had employment of under 500, and eight establishments had employment of 500 to 999. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 53. In this *Report and Order* , we have taken steps to advance our public safety mission by establishing a requirement that CMRS carriers comply by September 11, 2012, at the PSAP service area level, with § 20.18(h) of the Commission's rules. The Order requires carriers to submit compliance reports to the Commission at the two-year and four-year marks, explaining their progress in achieving compliance with § 20.18(h) at the PSAP level. In addition, some carriers may have to revise their internal recordkeeping procedures to comply with the Order's requirements, although the Order imposes no specific requirements in this regard. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 54. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;
(3)the use of performance, rather than design, standards; and
(4)and exemption from coverage of the rule, or any part thereof, for small entities.” 55. In the *Notice* , the Commission specifically considered the impact of potential revisions to the wireless E911 accuracy rules on small entities. The *Notice* asked whether certain classes of carriers and/or rural networks should be held to a uniform standard of accuracy if the Commission were to adopt one, and if so, by what date they should be required to come into compliance with a more stringent, uniform accuracy requirement. In previous rulemakings, the Commission has established different compliance deadlines for small wireless carriers. The questions posed in the *Notice* enabled the Commission to assess whether similar concessions to small entities were warranted with respect to wireless E911 accuracy requirements. 56. The Commission has determined that the benefits of requiring all CMRS carriers to comply with the requirements of § 20.18(h) at the PSAP service area level far outweigh any burdens associated with implementing these requirements. E-911 represents a significant and valuable investment that enables emergency responders to reach the site of an emergency as quickly as possible. The public safety comments in response to the *Notice* were nearly unanimous in support of this requirement. We acknowledge that compliance with the rule adopted in the order may impose cost burdens on small entities. However, given the great public interest benefits of the rules, we find that the public interest benefits outweigh the economic burdens. Furthermore, the Order gives carriers a full five years to come into compliance with § 20.18(h) at the PSAP level, in large part because we have taken into account the specific economic and technological concerns that small entities face. In the Initial Regulatory Flexibility Analysis, we sought comment on these rules and no commenter proposed an alternative version that would serve these benefits while lessening the economic burdens. Accordingly, we find that we have discharged our duty to consider the burdens imposed on small entities. Report to Congress 57. The Commission will send a copy of the *Report and Order* , including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Second Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Second Report and Order and FRFA (or summaries thereof) will also be published in the **Federal Register** . III. Ordering Clauses 58. Accordingly, *it is ordered* , pursuant to sections 1, 4(i), and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 332, that the Report and Order in PS Docket No. 07-114, CC Docket No. 94-102, and WC Docket No. 05-196 is adopted, and that part 20 of the Commission's rules, 47 CFR part 20, is amended. The Order shall become effective April 14, 2008, subject to OMB approval for new information collection requirements. 59. *It is further ordered* that the Request for Declaratory Ruling filed by APCO is granted to the extent indicated herein. 60. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 20 Communications equipment, Radio. Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 20 to read as follows: PART 20—COMMERCIAL MOBILE RADIO SERVICES 1. The authority for part 20 continues to read as follows: Authority: 47 U.S.C. 154, 160, 201, 251-254, 303, and 332 unless otherwise noted. 2. Section 20.18 paragraph
(h)is revised to read as follows: § 20.18 911 Services.
(h)*Phase II accuracy* .
(1)By September 11, 2012, licensees subject to this section shall comply with the following standards for Phase II location accuracy and reliability, to be tested and measured at the PSAP service area geographic level:
(i)For network-based technologies: 100 meters for 67 percent of calls, 300 meters for 95 percent of calls;
(ii)For handset-based technologies: 50 meters for 67 percent of calls, 150 meters for 95 percent of calls.
(iii)For the remaining 5 percent of calls, location attempts must be made and a location estimate must be provided to the appropriate PSAP.
(2)By the dates specified in this paragraph, carriers must satisfy the following requirements:
(i)By September 11, 2008, carriers must satisfy the location accuracy standards in paragraph (h)(1) of this section within each Economic Area
(EA)in which that carrier operates;
(ii)By September 11, 2009, carriers must file with the Commission a report describing the status of their ongoing efforts to comply with § 20.18(h);
(iii)By September 11, 2010, carriers must:
(A)Satisfy the location accuracy standards in paragraph (h)(1) of this section within each Metropolitan Statistical Area
(MSA)and Rural Service Area
(RSA)in which that carrier operates;
(B)Demonstrate PSAP-level compliance with the location accuracy standards in paragraph (h)(1) of this section within at least 75% of the PSAPs the carrier serves; and
(C)Demonstrate accuracy in all PSAP service areas within at least 50% of the applicable location accuracy standard ( *i.e.* , a carrier subject to the location accuracy standards in paragraph (h)(1)(ii) of this section must achieve location accuracy of 75 meters for 67 percent of calls in all PSAPs).
(iv)By September 11, 2011, carriers must file with the Commission a report describing the status of their ongoing efforts to comply with § 20.18(h).
(v)By September 11, 2012, carriers must be in full compliance with § 20.18(h) at the PSAP service area level.
(3)In assessing their compliance with the requirements of this section, carriers must include only those PSAPs that are capable of receiving Phase II location data. [FR Doc. E8-2797 Filed 2-13-08; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 080208139-8152-01] RIN 0648-XF58 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 2,708 nm 2 (9,288 km 2 ) in February and 2,648 nm 2 (9,082 km 2 ) in March, southeast of Portland, 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 February 19, 2008, through 2400 hours March 3, 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 February 4, 2008, an aerial survey reported an aggregation of eighteen right whales in the proximity of 42° 42′ N latitude and 69° 02′ W. long. The position lies approximately 75 nm southeast of Portland, 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. In February, the DAM Zone is bound by the following coordinates: 43° 10′ N., 69° 33′ W. (NW Corner) 43° 10′ N., 68° 26′ W. 42° 15′ N., 68° 26′ W. 42° 15′ N., 69° 33′ W. 43° 10′ N., 69° 33′ W. (NW Corner) In March, the DAM zone overlaps SAM West, and is bounded by the following coordinates: 43° 10′ N., 69° 33′ W. (NW Corner) 43° 10′ N., 68° 26′ W. 42° 15′ N., 68° 26′ W. 42° 15′ N., 69° 24′ W. 42° 30′ N., 69° 24′ W. 42° 30′ N., 69° 33′ W. 43° 10′ N., 69° 33′ 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 Northeast Multispecies year-round Cashes Ledge Closure Area found at 50 CFR 648.81(d), the February Cashes Ledge Closure Area for Harbor Porpoise found at 50 CFR 229.33(a)(6), and the March Northeast Multispecies seasonal Gulf of Maine Rolling Closure Area I found at 50 CFR 648.81(f)(i). 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 February 19, 2008, through 2400 hours March 3, 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: February 8, 2008. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 08-683 Filed 2-11-08; 1:49 pm]
Connectionstraces to 21
Traces to 21 documents
21 references not yet in our index
  • 40 CFR 271.21
  • 40 CFR 271.21(a)
  • 40 CFR 272
  • 40 CFR 272.1751(c)(2)
  • 40 CFR 271.1(i)
  • 40 CFR 272.1751(c)(3)
  • 40 CFR 271
  • 40 CFR 272.1751(c)(4)
  • 40 CFR 272.1751(c)(1)
  • Pub. L. 104-4
  • 1 CFR 51
  • 47 CFR 20
  • 47 CFR 20.18(h)
  • Pub. L. 104-13
  • Pub. L. 107-198
  • 50 CFR 229
  • 50 CFR 229.32
  • 50 CFR 648.81(d)
  • 50 CFR 229.33(a)(6)
  • 50 CFR 648.81(f)(i)
  • 50 CFR 229.32(g)(3)
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cites case law
Proposed Rules
Immediate final rule
U.S.C.§ 1151
U.S.C.§ 6926
U.S.C.§ 6927
Fed. Reg.Notices
U.S.C.§ 601
Fed. Reg.Notices
Fed. Reg.Proposed Rules
Fed. Reg.Notices
Fed. Reg.Notices
Cite40 CFR 271.21
Cite40 CFR 271.21(a)
Cite40 CFR 272
Cites 42 · showing 12Cited by 0 across 0 sources
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