Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on September 28, 2007 (72 FR 55124). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

The corrective action is revising the Emergency Procedures sections of the AFMs to advise the flightcrew of new procedures for emergency evacuation. You may obtain further information by examining the MCAI in the AD docket.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a Note within the AD.

We estimate that this AD will affect about 238 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $19,040, or $80 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

You may examine the AD docket on the Internet at http://www.regulations.gov ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Discussion

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified us that an unsafe condition may exist on certain Bombardier Model DHC-8-400 series airplanes. TCCA advises that during scheduled maintenance, an operator found cracks in the barrel nut at one of the four primary front spar wing-to-fuselage attachment joints. Investigation determined that the cracks were due to hydrogen embrittlement and that the problem is likely restricted to a batch of 166 barrel nuts from one supplier. In addition, another operator has reported finding cracked barrel nuts at three of the four wing front spar wing-to-fuselage joints on one aircraft. All three barrel nuts were from the suspect batch. Cracking of the barrel nuts, if not detected and corrected, could result in reduced structural integrity of the wing-to-fuselage attachments and consequent detachment of the wing.

Bombardier has issued Alert Service Bulletin A84-57-19, Revision A, dated February 6, 2008. The service bulletin describes the following procedures:

• Determining whether the inboard and outboard bolts are correctly pre-loaded.

• Replacing all hardware at locations where the pre-load is incorrect.

• Doing a visual inspection of the barrel nut and cradle for cracking.

• Replacing cracked barrel nuts with all new hardware.

• Doing an inspection for certain markings of the barrel nuts.

• Replacing barrel nuts having the affected markings.

These airplanes are manufactured in Canada and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are issuing this AD to detect and correct cracking of the barrel nuts at the wing front spar wing-to-fuselage joints, which could result in reduced structural integrity of the wing-to-fuselage attachments and consequent detachment of the wing.

This AD requires the following actions:

• Inspecting all barrel nuts to determine if the barrel nuts have a marking of LH7940T SPS 01 (all barrel nuts with this marking will also have a yellow dot identifier).

• Inspecting (repetitively) affected bolts to determine if the bolts are pre-loaded correctly.

• Replacing all hardware if the pre-load is incorrect.

• Doing repetitive visual inspections for cracking of the barrel nuts and cradles for airplanes on which the pre-load is correct.

• Replacing all hardware for all cracked barrel nuts.

• Replacing all hardware for certain affected barrel nuts that do not have cracking, which would end the repetitive inspections for those airplanes. This AD also provides an optional replacement for all affected barrel nuts.

The Canadian emergency airworthiness directive recommends accomplishing the inspection of the barrel nuts within 100 flight hours. We have determined, however, that the inspection must be done within 50 flight hours to adequately address the unsafe condition. In developing an appropriate compliance time for all airplanes that are affected by this AD, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the required inspections. We have coordinated this difference with TCCA.

We consider this AD interim action. We are currently considering requiring the replacement of all hardware for all barrel nuts identified with a marking of LH7940T SPS 01, as required by the Canadian emergency airworthiness directive. However, the planned compliance time for the replacement would allow enough time to provide notice and opportunity for prior public comment on the merits of the modification. In order to ensure continued operational safety in the interim, this AD requires repetitive inspections for cracking of the suspect barrel nuts every 100 flight hours until the replacement is done.

Cracking of the barrel nuts at the wing front spar wing-to-fuselage joints could result in reduced structural integrity of the wing-to-fuselage attachments and consequent detachment of the wing. Because of our requirement to promote safe flight of civil aircraft and thus, the critical need to assure the structural integrity of the front spar wing-to-fuselage attachment joints and the short compliance time involved with this action, this AD must be issued immediately.

Because an unsafe condition exists that requires the immediate adoption of this AD, we find that notice and opportunity for prior public comment hereon are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0167; Directorate Identifier 2008-NM-029-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that the regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

Veterinary Research Associates, Inc., 2817 West Country Rd., 54G, Fort Collins, CO 80524, has informed FDA that it has transferred ownership of, and all rights and interest in, ANADA 200-073 for Ketamine Hydrochloride Injection, USP, to Putney, Inc., 400 Congress St., suite 200, Portland, ME 04101. Accordingly, the regulations are amended in 21 CFR 522.1222a to reflect this change of sponsorship.

Following these changes of sponsorship, Veterinary Research Associates, Inc., is no longer the sponsor of an approved application. In addition, Putney, Inc., is not currently listed in the animal drug regulations as a sponsor of an approved application. Accordingly, 21 CFR 510.600(c) is being amended to remove the entries for Veterinary Research Associates, Inc., and to add entries for Putney, Inc.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

IVX Animal Health, Inc., 3915 South 48th Street Ter., St. Joseph, MO 64503, filed supplements to NADA 91-818 and NADA 94-170 for Phenylbutazone Tablets. The supplemental applications provide for revisions to warning statements on product labeling. The supplemental NADAs are approved as of January 17, 2008, and 21 CFR 520.1720a is amended to reflect the approval.

Approval of these supplemental NADAs did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required.

The agency has determined under 21 CFR 25.33(a)(1) that these actions are of a type that do not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Background

The final regulations (TD 9375) that are the subject of the correction are under Section 7216 of the Internal Revenue Code.

As published, final regulations (TD 9375) contain errors that may prove to be misleading and are in need of clarification.

Accordingly, the publication of the final regulations (TD 9375), which were the subject of FR Doc. 08-1, is corrected as follows:

1. On page 1058, column 3, in the preamble, under the paragraph heading “Background”, seventh line of the fifth paragraph of the column, the language “2005-52 I.R.B. 1204 (December 07,” is corrected to read “2005-52 I.R.B. 1204 (December 7,”.

2. On page 1062, column 1, in the preamble, under the paragraph heading “D. Disclosures to Other Tax Return Preparers”, thirteenth line of the column, the language “Service provider. The commentator's” is corrected to read “service provider. The commentator's”.

3. On page 1066, column 3, in the preamble, under the paragraph heading “H. Multiple Disclosures or Multiple Uses Within a Single Consent Form”, fifteenth line of the second paragraph, the language “Section 301-7216-3(c)(1) of the final” is corrected to read “Section 301.7216-3(c)(1) of the final”.

The California Department of Transportation requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over the Sacramento River, at Sacramento, CA. The Tower Drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal as required by 33 CFR 117.5. Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position 7:45 a.m. through 9:45 a.m. on March 16, 2008 to allow participants in the Shamrock Half Marathon Footrace to cross the bridge during the event. This temporary deviation has been coordinated with waterway users. There are no scheduled river boat cruises or anticipated levee maintenance during this deviation period. No objections to the temporary deviation were raised.

Vessels that can transit the bridge, while in the closed-to-navigation position, may continue to do so at any time.

In the event of an emergency the drawspan can be opened with 30 minutes advance notice.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The California Department of Transportation requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over the Sacramento River, at Sacramento, CA. The Tower Drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal as required by 33 CFR 117.5. Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position 1:45 p.m. through 2:45 p.m. on February 19, 2008 to allow participants in the Tour of California Bicycle Race to cross the bridge during the event. This temporary deviation has been coordinated with waterway users. There are no scheduled river boat cruises or anticipated levee maintenance during this deviation period. No objections to the temporary deviation were raised.

Vessels that can transit the bridge, while in the closed-to-navigation position, may continue to do so at any time.

In the event of an emergency the drawspan can be opened with 30 minutes advance notice.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials NAAQS mean National Ambient Air Quality Standard.

(iv) The initials SIP mean or refer to State Implementation Plan.

(v) The word State means the State of Colorado, unless the context indicates otherwise.

1. Submitting CBI. Do not submit this information to EPA through http://regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

I. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

II. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

III. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

IV. Describe any assumptions and provide any technical information and/or data that you used.

V. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

VI. Provide specific examples to illustrate your concerns, and suggest alternatives.

VII. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

VIII. Make sure to submit your comments by the comment period deadline identified.

In this action, we are approving revisions to Regulation No. 7, Section XII, for the control of VOC emissions from oil and gas operations. James B. Martin, the Executive Director of the Colorado Department of Public Health and Environment, submitted these revisions to us on August 3, 2007.

We previously approved Regulation No. 7, Section XII, on August 19, 2005 (see 70 FR 48652) as part of Denver's Early Action Compact (EAC) SIP for the 8-hour ozone standard. The purpose of the EAC SIP is to prevent exceedances of the 8-hour ozone standard in the Denver EAC area. 1 Due to unanticipated growth of condensate tank emissions in the oil and gas sector, the State determined that the version of Regulation No. 7, Section XII, that we approved in 2005 needed to be revised. The version of Regulation No. 7, Section XII, submitted August 3, 2007 requires a greater level of control of condensate tank emissions in the 8-hour ozone non-attainment area.

Section 110(k) of the CAA addresses our actions on submissions of SIP revisions. The CAA requires States to observe certain procedural requirements in developing SIP revisions. Section 110(a)(2) of the CAA requires that each SIP revision be adopted by a State after reasonable notice and public hearing. This must occur before a State submits the revision to us.

The Colorado Air Quality Control Commission (AQCC) held public hearings for the revisions to Regulation No. 7, Section XII, on November 17, 2006, November 18, 2006, and December 17, 2006. The AQCC adopted the revisions on January 5, 2007. The revisions became State effective on March 4, 2007.

We have evaluated the revisions to Regulation No. 7, Section XII, and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.

Colorado's Regulation No. 7, Section XII, “Volatile Organic Compound Emissions From Oil And Gas Operations,” imposes emission control requirements on oil and gas condensate tanks located in the Denver EAC area, with the majority of affected facilities being located in southern Weld County. Among other things, Regulation No. 7, Section XII, includes definitions; required emission reductions for the high ozone season and rest of the year; numerous recordkeeping requirements for a spreadsheet to determine weekly and other periodic compliance; emission factors used to demonstrate compliance; reporting requirements for certain equipment if a construction or Title V permit is issued by the State; a methodology for approval of alternative emissions control equipment; requirements for gas-processing plants; requirements for controlling emissions from dehydration units; and a methodology for approval to develop testing methods and revised emission factors.

The condensate tank requirements, along with other requirements applicable to oil and gas operations and natural gas fired reciprocating internal combustion engines, were initially promulgated in March 2004, and later revised in December 2004. Colorado submitted these requirements to us as a SIP revision, which we approved on August 19, 2005 (see 70 FR 48652). Colorado designed the emission limits in the 2004 revision of Regulation No. 7, Section XII, to achieve total condensate tank VOC emissions in the Denver EAC area during the summer ozone season of no more than 91.3 tons per day (tpd) as of May 1, 2007, and 100.9 tpd as of May 1, 2012. These daily values were relied on to demonstrate attainment of the 8-hour ozone standard in the modeling analysis, as part of the EAC SIP. However, because of unanticipated growth of condensate tank emissions, the State later determined that the emission limits in the 2004 version of Regulation No. 7 would be insufficient to meet these daily emission numbers. The 2007 revisions require a greater level of control of condensate tank emissions within the 8-hour ozone non-attainment area boundary. The State's goal remains to achieve the same daily emission targets for condensate tank VOC emissions.

We note that the VOC emission reductions that are required by Regulation No. 7, Section XII, are achieved not by specific requirements on each condensate tank, but instead by overall or system-wide emission reductions for each affected company's operations. As stated in Regulation No. 7, Section XII, the requirement to control emissions applies to owners or operators of condensate tanks with a cumulative total of 30 tons per year or more of VOC emissions. In practice, industry has controlled the condensate tank VOC emissions with flares or vapor recovery units, and Regulation No. 7, Section XII, requires these types of emission control devices to achieve 95% control efficiency.

Revised Regulation No. 7, Section XII, raises the system-wide control requirements for the ozone season from the 47.5% VOC reduction requirement that applied from May 1, 2006, through September 30, 2006, to 75% from May 1 through September 30 of each year from 2007 through 2011. For the period from May 1 through September 30 of each year, beginning with 2012, VOC emissions from condensate tanks must be reduced by 78% from uncontrolled actual emissions. Determination of compliance during the ozone season will be on a weekly basis. For the non-ozone season, the State revised the required reduction of condensate tank VOC emissions from 38% to 60% in 2007, and beginning in 2008, and each year thereafter, VOC emissions between October 1 and April 30 must be reduced by 70% from uncontrolled actual emissions. Emission reductions during the non-ozone season must be calculated as an average of the emission reductions achieved during this seven-month period.

In addition to the changes to the system-wide reduction requirements, the State adopted significant changes to the monitoring, recordkeeping, and reporting requirements. Owners or operators of any condensate storage tank that is being controlled under Regulation No. 7, Section XII, must inspect or monitor the control equipment at least weekly. Types of equipment include combustion devices, vapor recovery units, valves, and thief hatches. As noted above, the record-keeping provisions require owners or operators to maintain a spreadsheet to track emission reductions on a weekly basis during the ozone season (May 1 through September 30). In addition to the spreadsheet, owners or operators are required to maintain records of monitoring and inspection activities. The reporting provisions require owners or operators to submit an annual report by April 30 of each year, and also a semi-annual report by November 30 of each year, detailing emission reductions during the preceding year and ozone season, respectively. Finally, provisions have been added to require owners or operators subject to the condensate storage tank reduction requirements to submit a list of all their controlled tanks on April 30 of each year; to notify the State monthly during the ozone season of any change to the list of controlled tanks; and to notify the State monthly of any instance where the air pollution control equipment was not properly functioning and the steps taken to correct the problem. We have reviewed and are approving the revisions to Regulation No. 7, Section XII, “Volatile Organic Compounds From Oil and Gas Operations” because they require greater reductions in emissions and meet the requirements of section 110 of the CAA.

Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of a NAAQS, or any other applicable requirement of the CAA. The revisions to Regulation No. 7, Section XII, will not interfere with attainment, reasonable further progress, or any other applicable requirement of the CAA.

In this action, EPA is approving the revisions to Regulation No. 7, Section XII, that were submitted on August 3, 2007. The version of Section XII we are approving supersedes and replaces the prior version we approved at 70 FR 48652 (August 19, 2005). EPA is publishing this rule without prior proposal because the Agency views this as a non-controversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective April 14, 2008 without further notice unless the Agency receives adverse comments by March 14, 2008. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 14, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On October 6, 2006, Ohio submitted revisions to Ohio Administrative Code (OAC) Chapters 3745-72-01 and 3745-14-05. These rules provide a revised start date for the use of low-volatility gasoline and provide the necessary quantity of interim, surplus NO X emission reductions through the permanent retirement of new source set aside allowances from the State's NO X budget trading program. Revisions to OAC 3745-72-01 were addressed in a separate rulemaking published on May 25, 2007, at 72 FR 29269.

On September 13, 2007 (at 72 FR 52320), EPA proposed to approve the revisions to OAC 3745-14-05. The revision to OAC 3745-14-05 permanently withholds and retires 240 NO X allowances from Ohio's 2005 new source set aside.

By retiring these new source set aside allowances, Ohio guarantees that these allowances will not be reallocated to participating Ohio NO X SIP Call utilities and boilers the following year. This action allows EPA to consider the corresponding reduction of 240 tons of emissions of NO X to be surplus. These 240 tons of surplus NO X emission reductions, corresponding to reductions resulting from emission control devices installed on electrical generation units in the Cincinnati and Dayton areas before 2006, can be considered to provide 240 tons of NO X emission reduction in compensation for the equivalent emission increase resulting from discontinuation of the E-Check program in those areas in 2006.

EPA received both supportive and adverse comments in response to our proposed rulemaking on OAC 3745-14-05. EPA received comments from the Regional Air Pollution Control Agency (RAPCA) in support of our proposed action on October 18, 2007.

Adverse comments were sent dated January 12, February 15, March 13, and October 15, 2007, from Shumaker, Loop, and Kendrick, LLP, a law firm representing the Ohio Electric Utility Institute as well as various utilities in the State (hereafter described as “the Utilities”). Despite some comments being sent even before EPA had published the proposed rulemaking, we are treating the early comments as pertaining to today's action, and we address them in this action.

Comment: The Utilities believe that withholding and permanently retiring 240 NO X allowances has not and will not create emissions reductions in the Cincinnati and Dayton areas, specifically because:

(a) NO X allowances are not emissions reductions;

(b) If an Ohio source wanted to emit more, it could purchase allowances from outside the state, or it could transfer allowances from a facility it owns in another state;

(c) If no Ohio sources needed the withheld allowances for the purposes of compliance, then withholding and retiring the 240 allowances will not result in decreased emissions in the Ohio or Cincinnati/Dayton areas; and,

(d) No evidence exists to support that withholding these allowances resulted in reductions in the Cincinnati/Dayton areas.

Response: Under the cap and trade program known as the NO X SIP Call, EPA issues a finite number of allowances and allows each subject source an amount of emissions based on the quantity of allowances the source holds. The quantity of allowances thus corresponds to the total emissions allowed across the area covered by the NO X SIP Call. Consequently, by retiring 240 allowances, Ohio has unquestionably reduced the total allowable emissions across the NO X SIP Call area by 240 tons of NO X emissions. Ohio may use utility NO X emission reductions to compensate for discontinuing E-Check only if the reductions are surplus relative to existing requirements, and the retirement of 240 allowances provides 240 tons of NO X emission reductions that are surplus to the reductions mandated by the existing NO X SIP Call.

EPA further believes that Ohio can reasonably claim that the 240 tons of surplus NO X emission reduction that they have mandated compensates for 240 tons of NO X emission increase (or the equivalent quantity of increase in volatile organic compound emissions) resulting from discontinuation of E-Check. As stated in our notice of proposed rulemaking, “substantial emission reductions have occurred in the Cincinnati/Dayton area,” and “EPA believes that Ohio has latitude to attribute 240 tons of the 2006 NO X emission reductions in the Cincinnati/Dayton area to its retirement of 240 allowances.”

The comments do not directly address the rationale for these views that EPA provided in its notice of proposed rulemaking. The following responds more directly to the submitted comments:

(a) Retirement of NO X allowances does mandate a net emission reduction.

(b) Purchasing or transferring allowances from another location reduces allowable emissions at that other location, retaining the net emission reduction.

(c) EPA is concluding that 240 tons of the emission reductions that are known to have occurred in the Cincinnati and Dayton areas can be attributed to Ohio's retirement of 240 allowances. Ohio sources will not need these allowances precisely because they have implemented emission reductions mandated by the limited availability of allowances.

(d) Ohio provided for 240 tons of emission reduction, and Ohio can reasonably attribute this reduction to a small fraction of the over 10,000 tons of NO X reductions that have occurred in the Cincinnati and Dayton areas. 1 The commenter seeks evidence of a causal link between the allowance retirement and specific emission reductions, which would presumably require that Ohio or EPA examine the motivations underlying utility control decisions. EPA believes that such a survey is unnecessary, and believes that Ohio has adequate basis for associating the surplus reductions created by the rule revision with 240 tons of reductions that have occurred in the Cincinnati and Dayton areas.

Comment: The Utilities commented that Ohio's October 6, 2006, submittal should be considered `incomplete' because it does not meet the requirements of 40 CFR part 51, Appendix V, section 2.2, paragraphs (c), (d), and (e). For each section, the Utilities comment that statements by Ohio EPA personnel (provided in an appendix to the comments) support their view.

40 CFR part 51, Appendix V section 2.2(c) requires “Quantification of the changes to the plan of allowable emissions from the affected sources, estimates of changes in current actual emissions from affected sources, or, where appropriate, quantification of changes in actual emissions from affected sources through calculations of the differences between certain baseline levels and allowable emissions anticipated as a result of the revision.” The Utilities comment that Ohio only submitted the number of NO X allowances it plans to retire (240). Further, the Utilities state that Ohio's submittal does not quantify the “allowable emissions” from the Utilities under OAC 5745-14-05(C)(7) because the retired allowances do not limit utilities' allowable emissions. The Utilities in fact believe that it is impossible for Ohio to calculate the allowable emissions from Ohio utilities.

40 CFR part 51, Appendix V 2.2(d) requires “The State's demonstration that the National Ambient Air Quality Standards (NAAQS), prevention of significant deterioration increments, reasonable further progress demonstration, and visibility, as applicable, are protected if the plan is approved and implemented.” The Utilities comment that Ohio's calculation of 240 allowances cannot, by itself, show that the NAAQS are protected by OAC 3745-14-05(C)(7), despite anti-backsliding being the impetus for Ohio's submittal.

40 CFR part 51, Appendix V 2.2(e) requires “Modeling information required to support the proposed revision, including input data, output data, models used, justification of model selections, ambient monitoring data used, meteorological data used, justification for use of offsite data (where used), modes of models used, assumptions, and other information relevant to the determination of adequacy of the modeling analysis.” The Utilities comment that Ohio's submittal does not contain an equivalency demonstration or a modeling demonstration, and that modeling is necessary when reductions are made from sources outside the area. The Utilities believe Ohio EPA should have conducted modeling to support their submittal yet did not.

Response: EPA disagrees with the Utilities' comments on both substantive and process grounds. For the substance of 40 CFR part 51, Appendix V section 2.2(c), Ohio has specified that the rule provides 240 tons of NO X emission reduction. This number is completely specific and is precisely the type of information that EPA seeks under this section of Appendix V. EPA believes that sections 2.2(d) and 2.2(e) are not relevant to this submittal. EPA uses Appendix V to judge the completeness of a variety of submittals, and EPA must apply only those criteria that are germane to EPA's ultimate decision regarding approvability of the submittal. States routinely submit rules that address control requirements (e.g., to provide reasonably available control technology or, as here, to provide emission reductions to avoid backsliding) which are judged independently of whether the applicable areas are progressing satisfactorily toward attainment or whether modeling has been done to estimate the ambient impact. The factual statements by Ohio EPA personnel that were attached to the Utilities' comments (e.g., that no modeling was performed in support of the submittal) do not alter EPA's views that the submittal was complete.

Furthermore, in absence of a completeness determination by EPA within 6 months of receiving the submittal, Ohio's October 6, 2006, submittal became complete 6 months thereafter, pursuant to section 110(k)(1)(B) of the Clean Air Act. EPA does not have the discretion now to find the submittal incomplete.

Comment: The Utilities comment that Ohio's proposed revision to OAC 3745-14-05 does not meet the anti-backsliding requirements of 40 CFR 51.900-51.905. The Utilities state that Ohio did not provide photochemical modeling. They also state that Ohio did not sufficiently demonstrate a benefit to the Cincinnati and Dayton areas, nor can Ohio demonstrate actual reductions in those areas. The Utilities state that EPA Region 5 sent a letter to Ohio on September 20, 2005, in which EPA said that Ohio could claim reductions outside the Cincinnati and Dayton areas so long as they “demonstrate” that the reductions benefit the Cincinnati and Dayton areas.

Response: EPA is satisfied with Ohio's demonstration that retiring 240 NO X allowances will make surplus 240 of the roughly 10,000 tons of NO X reductions made from Cincinnati and Dayton area utilities by 2006, which clearly provides benefit to the Cincinnati and Dayton areas. EPA does not require modeling to know that creating 240 surplus allowances will allow the State to credit 240 of the more than 10,000 tons of NO X emission reductions toward compensation for loss of E-Check in 2006. Based on the information that Ohio EPA has provided, EPA is satisfied that the retirement of 240 NO X allowances from the 2005 control period will benefit the Cincinnati and Dayton areas.

Comment: The Utilities comment that today's action will undermine the Utilities' pollution control strategies and confidence in the NO X SIP Call rule. The Utilities state that “random confiscation” of allowances undermines the market system in a way similar to counterfeiting money.

Response: EPA believes that removing 240 allowances out of a pool of about half a million allowances will not have an appreciable negative effect on the functioning of the NO X SIP Call. The deliberate process that Ohio and EPA have followed in retiring allowances that had been set aside and not issued to any source provided utilities ample opportunity to plan for not receiving any of these allowances.

EPA is approving OAC 3745-14-05(C) as submitted by Ohio on October 6, 2006. EPA is approving the withdrawal and permanent retirement of 240 NO X new source set aside allowances from the 2005 control period. This action adds a new paragraph (C)(7) to OAC 3745-14-05, and re-orders the existing paragraphs from (C)(7) through (C)(9) to (C)(8) through (C)(10).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, Actions Concerning Regulations That Significantly “Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal Standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under Section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 14, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See Section 307(b)(2).)

Section 209(a) of the Clean Air Act (CAA or the Act) prohibits states from adopting or enforcing standards relating to the control of emissions from new motor vehicles or new motor vehicle engines. However, under section 209(b) of the CAA, EPA will grant a waiver of the section 209(a) prohibition to the State of California, thereby allowing California to adopt its own motor vehicle emissions standards, if California determines that its standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. EPA will not grant a section 209(b) waiver if it makes the specific findings listed in that section.

Section 177 of the CAA allows other states to adopt and enforce California's standards relating to the control of emissions from new motor vehicles, provided that, among other things, such state standards are identical to the California standards for which a waiver has been granted under CAA section 209(b). In addition to the identicality requirement, the state must adopt such standards at least two years prior to the commencement of the model year to which the standards will apply. All state implementation plan (SIP) revisions submitted to EPA for approval must also meet the requirements of CAA section 110.

In January 2004, the New Jersey Legislature passed legislation requiring the New Jersey Department of Environmental Protection (NJDEP) to adopt the California low emission vehicle (LEV) program, known as the LEV II program. Pursuant to this legislation, New Jersey promulgated regulations to adopt a LEV program identical to California's LEV II program. New Jersey's regulations were adopted on November 28, 2005 and became effective on January 17, 2006. New Jersey's LEV program will affect light-duty motor vehicles manufactured in model year 2009 and later.

On June 2, 2006, New Jersey submitted a SIP revision to EPA, seeking federal approval of its LEV regulations. EPA approved New Jersey's LEV program on August 27, 2007 (72 FR 48936), but did not take action on the zero-emission vehicle (ZEV) provisions of the program. New Jersey commented on EPA's March 21, 2007, Proposed Rulemaking (72 FR 13227), and requested that EPA approve the ZEV provisions of New Jersey's LEV program, consistent with EPA's section 209(b) waiver that allows California to enforce the ZEV sales requirement through model year 2011. On September 4, 2007 (72 FR 50650), EPA proposed to approve the ZEV provisions of New Jersey's LEV program through the 2011 model year. EPA's approval of the ZEV component of New Jersey's LEV program makes it Federally-enforceable. For further information on New Jersey's LEV program see the March 21, 2007, Proposed Rulemaking (72 FR 13227), the August 27, 2007, Final Rulemaking (72 FR 48936) and the September 4, 2007, ZEV Proposed Rulemaking (72 FR 50650).

EPA received no comments on the Proposed Rulemaking, published in the September 4, 2007, Federal Register (72 FR 50650).

EPA is approving the zero-emission vehicle component of New Jersey's LEV program through the 2011 model year, which is identical to the zero-emission vehicle portion of California's LEV II program for which EPA has issued a section 209(b) waiver of pre-emption. Approval of this component of New Jersey's LEV program further ensures that planned emissions reductions attributable to this program will be achieved. The New Jersey LEV program was adopted on November 28, 2005, published in the New Jersey State Register on January 17, 2006 with an effective date of January 17, 2006, and is codified in Title 7, Chapter 27, Subchapter 29 of the New Jersey Administrative Code.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 14, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

Throughout this document, whenever “we”, “us”, or “our” is used, we mean EPA.

EPA is publishing this rule without a prior proposal because we view this action as noncontroversial and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposal to relax the applicable volatility standard in Grant Parish if adverse comments are received on this direct final rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in a subsequent final rule based on the proposed rule.

Regulated Entities: Entities potentially affected by this rule are fuel producers and distributors who do business in Grant Parish. Regulated entities include:

This table provides only a guide for readers regarding entities likely to be regulated by this action. You should carefully examine the amended regulations in 40 CFR 80.27 to determine whether your facility is impacted. If you have further questions, call the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

Table of Contents I. What is the background for this action? II. Response to Comments III. What is the effect of this action? A. Determination of Nonattainment, Reclassification of Imperial County Nonattainment Area and New Attainment Date B. Date for Submitting a Revised SIP for the Imperial County Area IV. Final Action V. Statutory and Executive Order Reviews I. What is the background for this action?

On November 23, 2007, EPA published its proposed finding that Imperial County did not attain the 8-hour ozone NAAQS by June 15, 2007, the applicable attainment date (72 FR 65682). The proposed finding was based upon ambient air quality data from the years 2004, 2005, and 2006. In addition, as explained in the proposed rule, the area did not qualify for an attainment date extension under the provisions of CAA section 181(a)(5) and 40 CFR 51.907, because the 4th highest daily value in the attainment year was greater than 0.084 ppm. In the November 23, 2007, proposal, EPA proposed that the area would be reclassified by operation of law to “moderate” nonattainment, in accordance with CAA section 181(b)(2).

EPA published its proposed rule on November 23, 2007, and provided an opportunity for public comment. The public comment period ended on December 24, 2007. EPA received no comments. No further opportunity for public comment will be provided.

Pursuant to section 181(b)(2), EPA finds that Imperial County failed to attain the 8-hour ozone NAAQS by the June 15, 2007, attainment deadline prescribed under the CAA (69 FR 23858, April 30, 2004 and 40 CFR 51.903(a)) for marginal ozone nonattainment areas. When this finding becomes effective, Imperial County will be reclassified by operation of law from marginal nonattainment to moderate nonattainment. The reclassification to the next higher classification is mandated by section 181(b)(2)(A) of the CAA. (see the discussion in the proposal at 72 FR 65684) Moderate areas are required to attain the standard “as expeditiously as practicable” but no later than 6 years after designation or June 15, 2010. The “as expeditiously as practicable” attainment date will be determined as part of the action on the required SIP submittal demonstrating attainment of the 8-hour ozone standard. Also in this action, EPA is finalizing its proposal establishing a schedule by which California will submit the SIP revisions necessary to meet the requirements for areas reclassified to moderate nonattainment of the 8-hour ozone standard.

In its proposal, EPA addressed the schedule by which California is required to submit a revised SIP meeting the requirements for the Imperial County moderate nonattainment area. When an area is reclassified, EPA has the authority under section 182(i) of the CAA to adjust the CAA's submittal deadlines for any new SIP revisions that are required as a result of the reclassification.

Pursuant to 40 CFR 51.908(d), for each nonattainment area, a state must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season. The attainment year ozone season is the ozone season immediately preceding a nonattainment area's attainment date, in this case 2009 (40 CFR 51.900(g)). The ozone season is the ozone monitoring season as defined in 40 CFR Part 58, Appendix D, section 4.1, Table D-3 (71 FR 61236, October 17, 2006). For the purposes of this reclassification for Imperial County, January 1, 2009, is the beginning of the ozone monitoring season. As a result, EPA is finalizing its proposal requiring that the required SIP revisions be submitted by California as expeditiously as practicable, but no later than December 31, 2008. This timeline also calls for implementation of applicable controls no later than January 1, 2009.

The area was previously required to submit the requirements for marginal areas, and under section 182(b) remains required to meet them, and now must meet the requirements for moderate areas as well.

A revised SIP must include the following moderate area requirements: (1) An attainment demonstration (40 CFR 51.908), (2) provisions for reasonably available control technology and reasonably available control measures (40 CFR 51.912), (3) reasonable further progress reductions in emissions (40 CFR 51.910), (4) contingency measures to be implemented in the event of failure to meet a milestone or attain the standard (CAA 172(c)(9)), and (5) NO X and VOC emission offsets of 1.15 to 1 for major source permits (40 CFR 51.165(a)). See also the requirements for moderate ozone nonattainment areas set forth in CAA section 182(b). 1

Pursuant to CAA section 181(b)(2), EPA is making a final determination that the Imperial County “marginal” 8-hour ozone nonattainment area failed to attain the 8-hour ozone NAAQS by June 15, 2007. Upon the effective date of this rule, the Imperial County “marginal” 8-hour ozone nonattainment area will be reclassified by operation of law as a “moderate” 8-hour ozone nonattainment area. Pursuant to section 182(i) of the CAA, EPA is establishing the schedule for submittal of the SIP revisions required for moderate areas once the area is reclassified. The required SIP revision for California must be submitted as expeditiously as practicable, but no later than December 31, 2008.

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), entitled “Regulatory Planning and Review” and is therefore not subject to review under the EO. The Agency has determined that the finding of nonattainment would result in none of the effects identified in the Executive Order. Under Section 181(b)(2) of the CAA, determinations of nonattainment are based upon air quality considerations and the resulting reclassifications must occur by operation of law.

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 Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities. Determinations of nonattainment and the resulting reclassification of nonattainment areas by operation of law under section 181(b)(2) of the CAA do not in and of themselves create any new requirements. Instead, this rulemaking makes a factual determination, and does not directly regulate any entities. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act” or “UMRA”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that this rulemaking action does not include a Federal mandate within the meaning of UMRA that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. Also, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments and therefore is not subject to the requirements of section 203. EPA believes that the finding of nonattainment is a factual determination based upon air quality considerations and that the resulting reclassification of the area must occur by operation of law. Therefore EPA believes that the finding does not constitute a Federal mandate, as defined in section 101 of the UMRA, because it does not impose an enforceable duty on any entity.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action merely determines that the Imperial County area has not attained by its applicable attainment date, reclassifies the Imperial County area as a moderate ozone nonattainment area, and adjusts applicable deadlines. It does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This action is not subject to Executive Order 13045 because it is not economically significant as defined in E.O. 12866, and because the Agency does not have reason to believe the environmental health risks or safety risks addressed by this rule present a disproportionate risk to children. This action merely determines that the Imperial Valley area has not attained the standard by the applicable attainment date, reclassifies the Imperial Valley area as a moderate ozone nonattainment area, and adjusts applicable deadlines.

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.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS. This action merely determines that the Imperial County area has not attained by the applicable attainment date, reclassifies the Imperial County area as a moderate ozone nonattainment area, and adjusts applicable deadlines. Therefore, EPA did not consider the use of any voluntary consensus standards.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective March 14, 2008.

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 14, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:

• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to accessing an electronic copy of this Federal Register document through the electronic docket at http://www.regulations.gov , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at http://www.gpoaccess.gov/ecfr .

Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0637 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before April 14, 2008.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2007-0637, by one of the following methods:

•  Federal eRulemaking Portal : http://www.regulations.gov . Follow the on-line instructions for submitting comments.

•  Mail : Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

•  Delivery : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of September 19, 2007 (72 FR 53575-53577) (FRL-8144-3), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1F6253) by Dow AgroSciences, LLC, 9330 Zionsville Road, Indianapolis, IN 46268. The petition requested that 40 CFR part 180 be amended by establishing a tolerance for residues of the fungicide, 1,3-dichloropropene, in or on grape at 0.009 parts per million (ppm). That notice referenced a summary of the petition prepared by Dow AgroScience, LLC, the registrant, which is available to the public in the docket, at http://www.regulations.gov . There were no comments received in response to the notice of filing. Based upon review of the data supporting the petition, EPA has revised and raised the tolerance level to include the combined residues of the parent chemical, cis - and trans -1,3 dichloropropene, and the metabolites, cis - and trans -3-chloroacrylic acid and cis - and trans -3-chloroallyl alcohol which are considered to be of equal toxicity to the parent chemical.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” These provisions were added to FFDCA by the Food Quality Protection Act (FQPA) of 1996.

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for the combined residues of cis - and trans -1,3-dichloropropene, cis - and trans -3-chloroacrylic acid, and cis - and trans -3-chloroallyl alcohol (1,3-dichloropropene and metabolites) on grape at 0.018 ppm. EPA's assessment of exposures and risks associated with establishing the tolerance follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The toxicology database is considered to be adequate to support the proposed and existing uses of 1,3-dichloropropene. 1,3-Dichloropropene showed moderate acute toxicity by the oral and dermal exposure routes (Toxicity Category II), was moderately irritating to the eye and skin, and was a dermal sensitizer in guinea pigs. It is classified as Toxicity Category IV for acute inhalation toxicity and produced tremors, convulsions, salivation, lacrimation, diarrhea, lethargy and death at concentrations 647 ppm or higher.

Consistent with the irritant properties of 1,3-dichloropropene, there was evidence of degenerative changes in the nasal olfactory epithelium and histopathological changes of the respiratory epithelium in rats and mice after subchronic inhalation exposure. Following chronic inhalation exposure, the olfactory region of the nasal cavity appeared to be the target organ in rats while lung adenomas were induced in mice. Similarly, following oral exposure, 1,3-dichloropropene induced histopathological lesions in rats and/or mice including forestomach squamous cell papillomas and carcinomas, liver masses/neoplastic nodules, urinary bladder carcinomas, and alveolar/brochiolar adenomas. Increases in hematopoietic activity and decreased body weights were also noted in dogs and mice, respectively. Accordingly, 1,3-dichloropropene has been classified as “likely to be carcinogenic to humans” via both the oral and inhalation routes. As a result, cancer potency factors (Q1*) have been calculated for both routes of exposure.

Specific information on the studies received and the nature of the adverse effects caused by 1,3-dichloropropene and metabolites as well as the no-observed-adverse-effect-level (NOAEL) and the lowest observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov . The risk assessment dated January 24, 2008 is available in the docket established by this action, which is described under ADDRESSES , and is identified as EPA-HQ-OPP-2007-0637 in that docket.

For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern (LOC) is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors (UFs) are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. Short-, intermediate-, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (MOE) called for by the product of all applicable UFs is not exceeded.

For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm .

A summary of the toxicological endpoints for 1,3-dichloropropene and metabolites used for human risk assessment can be found at http://www.regulations.gov in the document titled 1,3-Dichloropropene: Proposed New Use for Drip Irrigation in Vineyards: HED Human Health Risk Assessment at page 21 in docket ID number EPA-HQ-OPP-2007-0637.

1. Dietary exposure from food and feed uses . In evaluating dietary exposure to 1,3-dichloropropene and metabolites, EPA considered exposure under the petitioned-for tolerance. There are no other tolerances for 1,3-dichloropropene and metabolites. EPA assessed dietary exposures from 1,3-dichloropropene and metabolites in food as follows:

i. Acute exposure . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for 1,3-dichloropropene and metabolites; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure . In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996, or 1998 Continuing Survey of Food Intake by Individuals (CSFII). As to residue levels in food, EPA relied upon anticipated residues and assumed 100 percent crop treated (PCT). Residues of cis - and trans -1,3-dichloropropene and three of the four metabolites were assumed to be at one-half the limit of detection (0.001 ppm) since residues were non-detectable in all field trials at shorter pre-harvest intervals (PHI) than the proposed use pattern. Residues at the proposed PHI in one trial of one metabolite were at the limit of quantitation (0.003 ppm), so the LOQ was used. The metabolites were assumed to have equal toxicity to the parent compound, so the total anticipated residue used in the dietary assessment for the chronic analyses was 0.0055 ppm.

iii. Cancer . The cancer dietary exposure assessment utilized the same data and assumptions used in the chronic dietary exposure assessment. For dietary exposure to 1,3-dichloropropene, an oral cancer potency factor (Q1* of 1.22 X 10 -1 (mg/kg/day) -1 ) was used to assess cancer risk.

iv. Anticipated residue and percent crop treated (PCT) information . Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must pursuant to FFDCA section 408(f)(1) require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of this tolerance.

2. Dietary exposure from drinking water . The Agency lacks sufficient surface water monitoring data to complete a comprehensive dietary exposure analysis and risk assessment for 1,3-dichloropropene and metabolites in drinking water. Because the Agency does not have comprehensive surface water monitoring data, drinking water concentration estimates from surface water sources are made by reliance on simulation or modeling taking into account data on the environmental fate characteristics of 1,3-dichloropropene and metabolites. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm .

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS), the estimated environmental concentrations (EECs) of 1,3-dichloropropene and metabolites for chronic exposures are estimated to be 16.2 parts per billion (ppb). The limited surface water monitoring data available from areas of high use did not show detectable residues of 1,3-dichloropropene in 123 samples.

There is sufficient data for tap water from groundwater wells available for 1,3-dichloropropene and metabolites. A total of 518 wells were selected in the Central Columbia Plateau, Upper Snake River Basin, North Platte River, Albermarle-Pamlico Sound, and the George/Florida basins. The wells were intended to be among the most vulnerable wells available for sampling in each region because they were in high use areas, were among the shallowest in each region, and were located in close proximity to fields that had received 1,3-dichloropropene applications in the recent past. 1,3-Dichloropropene and metabolites were not found above 0.145 ppb in 5,800 samples.1,3-Dichloropropene or its degradates were detected in 12% of the wells. Only three wells had two detections over the course of the study; no wells had more than two detections. Of the approximately 5,800 samples, only 68 detections were observed for either the parent compound or the metabolites.

Modeled surface water estimates of drinking water concentrations and the maximum ground water concentration from monitoring data were directly entered into the dietary exposure model. For chronic dietary risk assessment, the surface drinking water concentration value of 16.2 ppb was used and the ground drinking water concentration value of 0.14 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

1,3-Dichloropropene is not registered for use on any sites that would result in residential exposure. However, due to the volatility of 1,3-dichloropropene, residential bystander exposure may occur when 1,3-dichloropropene is applied to agricultural fields near residential areas. Residential bystander exposure may occur because of emissions from treated fields. These emissions can travel to non-target areas and are referred to as bystander exposure. Bystander exposure can occur as a result of being in contact with residues that are emitted from a known single source (e.g., a single application to an agricultural field near a residential area) and from multiple sources (e.g., applications to numerous agricultural fields) within a localized agricultural region (ambient air exposure).

i. Inhalation exposure from a single source . Acute exposures to bystanders from single post-plant agricultural field fumigation events and their associated risks were calculated using the distributional/probabilistic modeling method. Distributional modeling was done with the Probabilistic Exposure and Risk Model for Fumigants (PERFUM). Exposures were also analyzed using the actual field study data (i.e, the monitoring method). Additional information on the methods used to assess bystander risks are given in Section 6.1.1 from the Phase 5 Registration Eligibility Decision.: Methods Used to Calculate Bystander Exposures and Risks From Known Sources located at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2005-0124-0052, page 27.

a. Acute exposure was estimated by using the maximum 24-hour time-weighted average (TWA) from each field volatility study.

b. Short-term exposure was estimated by using the highest 7-day average for each direction from each field volatility study.

c. Intermediate-term exposures (consecutive exposures lasting 30 days to several months) is expected to be less likely since 1,3-dichloropropene products are only used 1 to 2 times per field each year.

d. Chronic exposure is not expected since it is unlikely that bystanders will be continually exposed to significant concentrations of 1,3-dichloropropene for 6 consecutive months or longer. Chronic exposure from multiple (ambient air) sources is more likely and described in section 3 (ii)(c).

e. Cancer risks to 1,3-dichloropropene were estimated for multiple (ambient air) sources as that exposure scenario is more representative of a lifetime of exposure and are described in the following section 3(ii)(d).

ii. Inhalation exposure from ambient air sources . Exposure to 1,3-dichloropropene from ambient air was evaluated using monitoring data from California. These data reflect existing pre-plant fumigation uses that are applied at rates over 10 times the rate of the proposed post-plant fumigation use on grapes. These data consist of two basic types that include targeted monitoring that occurred in a high use area during the season of use. The other type of data was collected as part of the routine Toxic Air Contaminant (TAC) program and focus on background levels in urban environments.

a. Acute exposure was estimated by using the maximum 24-hour time-weighted average (TWA) from the monitoring data.

b. Short-term and intermediate-term exposures were estimated by comparing the mean of the weekly mean estimate from the monitoring data.

c. Chronic exposures were calculated using the targeted regional source ambient data. These calculations should be considered as rangefinder estimates of exposure only because of a lack of monitoring studies specifically designed for this purpose. Short- and intermediate-term estimates were amortized to reflect a potential for exposure of 180 days out of each calendar year in order to calculate chronic estimates of exposure. This was based on the approximate use patterns for 1,3-dichloropropene over a year in high use areas. Results based on all of these calculations, as indicated above, do not represent a risk concern to the Agency and in most cases risks were far below the target level of concern (e.g., by orders of magnitude). There were no ambient monitoring studies targeting areas of high use that collected air samples over an entire year that would be considered representative of a chronic exposure pattern. In these studies the focus was more on the actual season of use so these data were typically collected for only 9 weeks or so which represents the duration of the typical application season. However, in order to be able to evaluate the possibility of chronic exposures in high use areas the Agency utilized the seasonal mean of means from the high use areas and supposed that exposures could be maintained at this rate for a sustained period of 6 months which is twice as long as a normal application season. This approach does have some uncertainty associated with it but the Agency believes that this approach does not underestimate exposure because monitoring data were collected in the season of use in areas of high use. Additionally, risks calculated based on this method, as indicated above, are typically well below the Agency's level of concern. In addition to using the targeted monitoring data, the Agency also used the urban background monitoring data to calculate chronic risks. In this case, the data were intentionally designed to be used to evaluate longer-term exposure levels. Many of the samples collected in this network did not even contain measurable residues over the course of the monitoring years in question but chronic risks were still evaluated as a precautionary measure.

d. For cancer risk assessment, the lifetime average daily exposure (LADE) was calculated using the mean of weekly means and assumed that exposure lasts the length of the longest monitoring period (9 weeks/63 days).

4. Cumulative effects from substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to 1,3-dichloropropene and any other substances and 1,3-dichloropropene does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that 1,3-dichloropropene has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative .

1. In general . Section 408 of FFDCA provides that EPA shall apply an additional (“10X”) tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor. In applying this provision, EPA either retains the default value of 10X when reliable data do not support the choice of a different factor, or, if reliable data are available, EPA uses a different additional FQPA safety factor value based on the use of traditional UFs and/or special FQPA safety factors, as appropriate.

2. Prenatal and postnatal sensitivity . There is no evidence (quantitative or qualitative) of susceptibility and no residual uncertainties with regard to pre- and/or post-natal toxicity following in utero exposure to rats or rabbits and pre- and/or post-natal exposures to rats.

3. Conclusion . EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X. That decision is based on the following findings:

i. The toxicity database for 1,3-dichloropropene is complete.

ii. There is no indication that 1,3-dichloropropene is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that 1,3-dichloropropene results in increased susceptibility following in utero and/or post-natal exposure in rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% crop treated and average anticipated residues. Conservative surface water modeling estimates were used, and sufficient monitoring data were used to assess ground water concentrations. There are no residential uses of 1,3-dichloropropene and conservative modeling was used to estimate bystander exposure. These assessments will not underestimate the exposure and risks posed by 1,3-dichloropropene and metabolites.

Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-, intermediate-, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of expsure (MOE) called for by the product of all applicable UFs is not exceeded.

For the acute, short-, intermediate-, and long-term assessments, the toxicity endpoints selected for inhalation and dietary exposures should not be aggregated since no common endpoints were identified at the LOAEL in studies conducted via the oral or inhalation routes. 1,3-Dichloropropene has been classified as likely to be carcinogenic to humans via the oral and inhalation routes. However, the types of tumors observed in the inhalation and oral studies were different. Therefore, the oral and inhalation exposures were not aggregated.

1. Acute risk . An endpoint was not selected for acute dietary risk assessment because there were no effects attributable to a single dose (exposure) via the oral route. Therefore, 1,3-dichloropropene is not expected to pose an acute dietary risk.

For residential bystander acute inhalation risk resulting from exposure to a single source, the lowest acute MOE was 400 based on the application rate in the field volatility data and the lowest acute MOE was 160 based on the maximum label rate. The risk estimates did not exceed the level of concern using the PERFUM modeling method. For residential bystander acute inhalation risk resulting from exposure to ambient air sources, the lowest acute MOE was 2,700 based on California ambient air monitoring data. The MOEs do not exceed the Agency's level of concern of < 30.

2. Chronic risk . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to 1,3-dichloropropene and metabolites from food and water (ground water sources) will utilize < 1% of the cPAD for the most highly exposed population group (children 1 to 2 years old) and from food and water (surface water sources) will utilize < 5% of the cPAD for the most highly exposed population group, infants < 1 year old.

Residential bystander chronic inhalation exposure from a single source is not expected to occur and therefore, does not pose an inhalation risk. For residential bystander chronic inhalation risk resulting from exposure to ambient air sources, the lowest chronic MOE was 130 based on California ambient air monitoring data. The MOE does not exceed the Agency's level of concern of < 30.

3. Short-term risk . For residential bystander short-term inhalation risk resulting from exposure to a single source, the lowest short-term MOE was 60 based on the application rate in the field volatility data and based on the maximum label rate. For residential bystander short-term inhalation risk resulting from exposure to ambient air sources, the lowest short-term MOE was 1,700 based on California ambient air monitoring data. The MOEs do not exceed the Agency's level of concern of < 30.

4. Intermediate-term risk . Residential bystander intermediate-term inhalation exposure from a single source is unlikely to occur and therefore, does not pose an inhalation risk. For residential bystander intermediate-term inhalation risk resulting from exposure to ambient air sources, the lowest intermediate-term MOE was 70 based on California ambient air monitoring data. The MOE does not exceed the Agency's level of concern of < 30.

5. Aggregate cancer risk for U.S. population . The aggregated food and water risk represent upper bound risks for a person living in agricultural areas where 1,3-dichloropropene is used extensively or where a person obtains drinking water from an aquifer that led directly from an area where 1,3-dichloropropene was used. The aggregate chronic dietary cancer risk estimates for the general U.S. population resulting from exposure to 1,3-dichloropropene and metabolites in food and water (ground water sources) is 7 X 10 -7 and from exposure to 1,3-dichloropropene and metabolites in food and water (surface water sources) is 4 X 10 -5 .

Although risk for drinking water from surface water sources for 1,3-dichloropropene exceeds the Agency's level of concern (risk estimates generally in the range of 1 in 1 million, interpreted as > 1 to 3 X 10 -6 ); it should be noted that concentrations of 1,3-dichloropropene in tap water from ground water wells were approximately 100 times lower than those found in the field ground water study and several orders of magnitude lower than modeled estimates of 1,3-dichloropropene in groundwater. Therefore, it is highly likely that actual drinking water concentrations of 1,3-dichloropropene from surface water sources would also be much lower. 1,3-Dichloropropene and its metabolites are highly volatile compounds, and the models used to generate surface water and ground water estimates are not designed for volatile chemicals. The limited surface water monitoring data available in areas of high use do not show any detections of 1,3-dichloropropene and its degradates. Therefore, the Agency does not have a concern for the aggregate cancer risk from oral exposures to 1,3-dichloropropene and its metabolites.

Cancer risk was estimated using 1,3-dichloropropene ambient air monitoring data collected from over 20 sites over multiple years to estimate exposure over a lifetime. These sites were in areas of high use and in urban environments. The cancer risk estimates for all but one monitoring site, in a high use area, ranged from 2 X 10 -6 to 9 X 10 -8 , which are below the Agency's level of concern. The monitoring data for the one site resulted in a risk estimate of 6 X 10 -6 , which does exceed the Agency's level of concern. However, risks calculated using data from the same site in the following year was almost two orders of magnitude lower. Therefore, over a lifetime of exposure, the risk estimates would likely be below the level of concern. It should be noted that in more populated urban environments, air concentrations were below the analytical limit of detection in 21 of 28 sites/year combinations considered. In the remaining seven site/year combinations, values were measured but did not result in cancer risks of concern. Therefore, the Agency does not have a concern for the cancer risk from 1,3-dichloropropene.

6. Determination of safety . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to 1,3-dichloropropene and metabolites residues.

Dow AgroSciences, LLC submitted a gas chromatography/mass spectroscopy (GC/MS) method, Method GRM 99.09.R1, for the determination of residues of cis - and trans -1,3-dichloropropene. The method was adequately validated using fortified samples of grape. Recoveries of cis -1,3-dichloropropene ranged from 70% to 114% and recoveries of trans -1,3-dichloropropene ranged from 77% to 113% from samples fortified at 0.003, 0.010, 0.050, and 0.50 ppm. The fortification levels used in method validation are adequate to bracket expected residue levels. Adequate independent laboratory validation (ILV) data were submitted for Method GRM 99.09.R1 using samples of grape.

Dow AgroSciences, LLC submitted a GC/MS method, Method GRM 99.18, for the determination of residues of 3-chloroallyl alcohol and 3-chloroacrylic acid. The validated LOQ is 0.003 ppm for each analyte in grape. The method was adequately validated using fortified samples of grape. Recoveries of cis -3-chloroallyl alcohol ranged from 74% to 90%, recoveries of trans -3-chloroallyl alcohol ranged from 82% to 95%, recoveries of cis -chloroacrylic acid ranged from 93% to 98%, and recoveries of trans -chloroacrylic acid ranged from 91% to 96% from samples fortified at 0.003, 0.006, and 0.030 ppm. The fortification levels used in method validation are adequate to bracket expected residue levels. The Agency has tentatively concluded that the metabolite method is suitable for enforcement.

Adequate enforcement methodology (GC/MS) is available to enforce the tolerance expression. The method may be requested from: Chief,Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address: residuemethods@epa.gov .

There are no Canadian or Codex Maximum Residue limits for residues of 1,3-dichloropropene for any commodity.

1. An independent laboratory validation of Method GRM 99.18 and multi-residue method testing will be required as confirmatory data.

2. In order to refine the exposure estimates from PRZM-EXAMS, the following data will be required: an aerobic soil metabolism study on additional soils (parent and metabolites); an aerobic aquatic metabolism study (parent and metabolites); an aqueous photolysis study (indirect and parent); a soil photolysis study (parent); and a photolysis/oxidation in air study (parent).

Therefore, the tolerance is established for combined residues of cis - and trans -1,3-dichloropropene, cis - and trans -3-chloroacrylic acid, and cis - and trans -3-chloroallyl alcohol, in or on grape at 0.018 ppm.

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, 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) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801 et seq. , generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Section 1007(a)(2) of the Legal Services Corporation Act (“Act”), 42 U.S.C. 2996f(a)(2), requires the Corporation to establish maximum income levels for individuals eligible for legal assistance, and the Act provides that other specified factors shall be taken into account along with income.

Section 1611.3(c) of the Corporation's regulations establishes a maximum income level equivalent to one hundred and twenty-five percent (125%) of the Federal Poverty Guidelines. Since 1982, the Department of Health and Human Services has been responsible for updating and issuing the Federal Poverty Guidelines. The revised figures for 2008 are equivalent to 125% of the current Federal Poverty Guidelines as published on January 23, 2008 (73 FR 3971).

LSC published the charts listing income levels that are 200% of the Federal Poverty Guidelines at 73 FR 5458, Jan. 30, 2008. These charts are for reference purposes only as an aid to grant recipients in assessing the financial eligibility of an applicant whose income is greater than 125% of the applicable Federal Poverty Guidelines amount, but less than 200% of the applicable Federal Poverty Guidelines amount (and who may be found to be financially eligible under duly adopted exceptions to the annual income ceiling in accordance with sections 1611.3, 1611.4 and 1611.5).

The fisheries for shrimp in the exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf) and the South Atlantic are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and regulations at 50 CFR part 622. The regulations implement the Gulf FMP prepared by the Gulf of Mexico Fishery Management Council (GMFMC) and the South Atlantic FMP prepared by the South Atlantic Fishery Management Council (SAFMC).

On October 12, 2007, NMFS published the proposed rule to revise the bycatch reduction device testing protocols for the Gulf and South Atlantic regions, revise the BRD certification criterion for the western Gulf, and certify additional BRDs (72 FR 58031). Public comment on the proposed rule was requested through November 13, 2007. The rationale for the measures contained in this final rule is provided in the preamble to the proposed rule and is not repeated here.

The following is a summary of the comments NMFS received on the proposed rule and NMFS' respective responses. Three comment letters were received during the comment period. In addition, a non-governmental organization submitted comments signed by 1,266 individuals in support of the proposed action.

Comment 1 : NMFS should implement the proposed changes as part of a comprehensive plan to address the significant amount of bycatch associated with this fishery and help end overfishing and rebuild the red snapper stock.

Response : This rulemaking is part of a comprehensive plan addressing bycatch in the shrimp fishery and overfishing of the red snapper resource. This rulemaking to provide additional BRDs to the fishery will support additional actions taken by the GMFMC and NMFS. In 2006, the GMFMC recommended, and NMFS implemented, an individual fishing quota (IFQ) for the commercial Gulf red snapper fishery; in general, IFQs tend to help reduce fishing mortality. To better control overall effort in the shrimp fishery, the GMFMC recommended, and NMFS implemented, a moratorium on the issuance of Federal shrimp vessel permits. Approximately 2,000 vessels qualified for a moratorium permit; this is a substantial reduction from the number of vessels participating in the fishery in the past. In addition, the GMFMC recommended, and NMFS is currently considering several actions to end overfishing of red snapper by 2010 and rebuild the stock by 2032. The recommended actions include a substantial reduction in the total allowable catch for the directed commercial and recreational red snapper fishery, harvesting restrictions to restrain the recreational fishery to its quota, and possible time-area closures for the shrimp fishery to reduce bycatch mortality on juvenile red snapper.

Comment 2 : The proposed changes to increase flexibility in the field testing procedures for experimental BRDs should substantially improve the practicability of the testing criteria and procedures that currently exist. Many of the changes will better allow research to be adapted to the real-world practical realities of shrimp trawling and, as a consequence, will encourage more fishermen to participate in testing new BRD designs and configurations.

Response : The procedures prescribed for testing BRDs in the field were rigorous in an attempt to reduce the statistical uncertainty of the results. However, these rigorous field sampling procedures and the inflexible statistical procedures hindered the successful certification of several BRD designs that showed promise at reducing substantial amounts of bycatch. This discourages innovative developments to improve BRDs.

Comment 3 : Replacing the current tow time restrictions with a more realistic requirement for such adjustments to be reasonable will allow fishermen to adapt to local fishing conditions and successfully complete a test on an experimental BRD. However, the proposed rule indicated any tow time changes made during a field test would need to be approved by the Regional Administrator (RA) at the conclusion of the test, and the changes may be disapproved. There should be a more deliberate process for the applicant and NMFS to resolve what the acceptable limits will be on tow time adjustments. This should be done on a case-by-case basis before the testing begins and as part of the initial design of the operations plan. This will avoid the situation of after-the-fact rejections of the tests by the RA and the resulting wasted time and resources.

Response : It is the responsibility of the applicant to make logical and reasonable proposals for tow times in the research plan submitted to the RA requesting a Letter of Authorization to conduct a test on an experimental BRD. The research plan should also include a “contingency” plan if any of the primary procedures have to be changed during a test. Changes to the tow time made during a test should follow a similar logical and reasonable rationale. Even under the best pre-planned event, there may be a need to make such a change during a test. For example, the total catch taken during a tow may be greater than what was anticipated in the applicant's proposal. Under such conditions, shorter tow times would produce manageable quantities of catch for sampling. Under the new procedures, when the final test results are submitted to NMFS for review, the applicant would simply need to document the need for such a change, and provide a good rationale for such change. The rationale for the change would be reviewed by the RA, in consultation with Southeast Fisheries Science Center staff, on a case-by-case basis.

Comment 4 : The current requirement to rotate gear between the port and starboard sides every four to six tows (Gulf) or daily (South Atlantic) to eliminate net or side bias is highly impracticable and has presented a serious obstacle to participation in the testing program. The proposed change would allow the applicant to propose an acceptable rotational schedule that still ensures equal numbers of tows will be conducted with the BRD candidate on both sides. In the case of a quad-rig (4-net) vessel, NMFS should additionally allow the applicant to use the candidate BRD in one of the two nets on each side of the vessel, simultaneously, as an alternative means to eliminate bias that might result from testing on just one side of the vessel. This will help eliminate the numerous practical difficulties associated with rotating gear.

Response : BRD testing is conducted by comparing the differences in the catch and bycatch of two nets towed simultaneously by a single vessel, where one net contains an experimental BRD, the other net has no BRD. Assuming the two nets have equal or similar fishing efficiencies, the differences in catch and bycatch between the two nets can be attributed to the inclusion of the experimental BRD in one net. In reality, no two nets will have identical fishing efficiencies, nor will each net encounter exactly the same number of each species during a tow. Therefore, the paired tests will always have some, albeit minor, bias between nets. The requirement to rotate the experimental BRD from one net to another on a regular basis is intended to negate this bias. Additionally, there may be some differences in the catch between outboard and inboard nets in a quad-rig system, especially for the inboard net located behind the try net. Comparisons of the catch of an inboard net to the catch of an outboard net adds another variable for consideration. For this reason, to make the paired comparison as balanced as possible, the procedure has always designated the two outboard nets be used as experimental and control nets. Nevertheless, NMFS does not automatically exclude the proposed concept to place an experimental BRD in a net on both sides of the vessel, and compare the catch of those nets against the catch of the other two nets that do not contain a BRD. The revisions to the testing procedures are intended to provide the applicant with the flexibility to make a reasonable proposal for a scientifically and statistically valid experiment.

The Administrator, Southeast Region, NMFS, determined that this rule is necessary for the conservation and management of the shrimp fisheries in the Gulf and the South Atlantic regions and is consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be significant for purposes of Executive Order 12866.

A FRFA was prepared. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, and NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES ).

This final rule will modify the procedures for field testing BRD candidates for use in the Gulf and South Atlantic EEZ commercial shrimp fisheries, will modify the bycatch reduction criterion for certifying BRDs for use in the penaeid shrimp fishery in the Gulf EEZ west of Cape San Blas, Florida (western Gulf), and certify new BRDs for the fisheries.

The purpose of this final rule is to implement more practical field testing procedures for BRD certification candidates and to establish a realistic bycatch reduction threshold for the Gulf EEZ commercial shrimp fishery.

No significant issues were raised by public comments in response to the IRFA. Therefore, no changes were made in the final rule as a result of such comments.

The primary entities that are expected to apply for the BRD certification process are state government, academic, and not-for-profit entities. Independent commercial shrimping operations in either the Gulf or South Atlantic may also be included among applicants. In addition to being potential testing applicants, Gulf shrimp vessels are expected to be indirectly impacted by the modification to the bycatch reduction criterion. NMFS estimates up to 24 applicants will apply for the BRD certification process during the first year and a smaller number in following years. While the identity of entities that might pursue future BRD testing cannot be determined with any certainty, based on past applicants, BRD testing is expected to be undertaken by NMFS, the Texas Parks and Wildlife Department, the Florida Department of Environmental Protection, Texas A&M University, the University of Georgia, the Gulf and South Atlantic Fisheries Foundation, Inc., other institutions, and owners of shrimp vessels.

There are approximately 700 vessels permitted to operate in the South Atlantic EEZ commercial shrimp fishery. The most current assessment of the South Atlantic commercial shrimp fishery covers the period 2000-2002 and encompasses vessels that operated in both state and EEZ waters. While this assessment covered a larger universe of vessels, an average of approximately 1,900 vessels per year, and different economic conditions, it represents the best profile available at this time. Over this period, average gross revenue per vessel ranged from approximately $71,000 to approximately $81,000. The highest gross revenue per vessel from all commercial harvesting activities did not exceed $1.0 million.

For the Gulf EEZ, as of March 26, 2007, a moratorium permit is required to fish for shrimp. Based on the number of permits issued and number of applications being processed as of November 8, 2007, approximately 2,000 vessels are expected to be issued moratorium permits.

An evaluation of revenue distribution within the Gulf EEZ commercial shrimp fleet by vessel size indicates substantial differences in yearly average revenues between large (at least 60 ft (18.3 m) in length) and small vessels. For the large vessel group, average annual revenues per vessel in 2004 was approximately $140,000, while the comparable value for small vessels was approximately $27,000. Across all vessels, the average annual gross revenue per vessel was approximately $110,000. Maximum yearly gross revenue reported by a qualifying vessel was approximately $1,046,000.

On average, small vessels are also smaller in regards to most of their physical attributes (e.g., they use smaller crews, fewer and smaller nets, have less engine horsepower and fuel capacity). Small vessels are also older on average. Large vessels tend to be steel-hulled, whereas fiberglass hulls are most prominent among small vessels, though steel and wood hulls are also common. Nearly two-thirds of large vessels have freezing capabilities while few small vessels have such equipment. Small vessels still rely on ice for refrigeration and storage, though more than one-third of large vessels also rely on ice. Some vessels are so small that they rely on live wells for storage.

An important difference between large and small Gulf EEZ commercial shrimp vessels is with respect to their dependency on the food shrimp fishery. The percentage of revenues arising from food shrimp landings is approximately 81 percent for large vessels, but only approximately 58 percent for small vessels. Thus, on average, large vessels are more dependent than their smaller counterparts on the food shrimp fishery. However, dependency on food shrimp is more variable within the small vessel sector than the large vessel sector. Many small vessels are quite dependent on food shrimp landings, while others illustrate little if any dependency.

Finally, according to recent projections, on average, both small and large Gulf EEZ commercial shrimp vessels are experiencing significant economic losses, ranging from a -27 percent rate of return (net revenues or total fixed and variable costs) in the small vessel sector to a -36 percent rate of return in the large vessel sector (-33 percent on average for the fishery as a whole).

The Small Business Administration (SBA) defines a small organization as any not-for-profit enterprise that is independently owned and operated and not dominant in its field of operation. This definition includes private educational institutions. The SBA also defines a small governmental jurisdiction as the government of cities, counties, towns, townships, villages, school districts, or special districts with a population less than 50,000. Finally, the SBA defines a small business in the commercial fishing activity as an entity that is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has average annual total receipts not in excess of $4.0 million annually (NAICS codes 114111 and 114112, finfish and shellfish fishing).

While the identity of entities that might pursue BRD testing cannot be determined with any certainty, based on past applicants, BRD testing is expected to be undertaken by NMFS, the Texas Parks and Wildlife Department, the Florida Department of Environmental Protection, Texas A&M University, the University of Georgia, the Gulf and South Atlantic Fisheries Foundation, Inc., other institutions, and owners of shrimp vessels. The state agencies are extensions of the respective state governments and, as such, clearly exceed the SBA population thresholds for small government entities. Similarly, both Texas A&M University and the University of Georgia are, as public universities, extensions of the respective state government educational systems, with staff being state employees, and, therefore, are similarly classified as large entities. Any private college or university, or non-profit organization that might apply for the BRD testing process is determined for the purpose of this analysis to be a small entity because private educational institutions and small non-profit organizations are generally understood to be smaller in terms of student population, staff, and operational budgets than public institutions. Based on the maximum annual revenue information for Gulf and South Atlantic commercial shrimping operations, vessels that may participate in the certification program are determined to be small business entities for the purpose of this analysis. It is unknown what portion of the estimated maximum 24 entities expected to apply for the certification program the first year, and fewer entities in subsequent years, would be small or large entities.

All entities that receive the Gulf EEZ commercial shrimp fishery moratorium permit may be indirectly affected by the Gulf bycatch reduction criterion. Based on the maximum revenue information for Gulf EEZ commercial shrimping operations, all such vessels are determined, for the purpose of this analysis, to be small business entities.

The measures in this final rule do not affect the reporting or record-keeping requirements for shrimp vessels. This final rule only modifies the performance standards used in BRD certification and does not require new record or report preparation.

The outcome of “significant economic impact” can be ascertained by examining two issues: disproportionality and profitability.

The disproportionality question is: do the final regulations place a substantial number of small entities at a significant competitive disadvantage to large entities? Revision to the Manual is not expected to result in any direct or indirect adverse economic impacts on any affected entities since the reporting burden per applicant will not increase and the revisions, in and of themselves, will not cause any BRDs to be certified, provisionally certified, or decertified in future actions. Therefore, the issue of disproportionate impacts does not apply to this component of the final rule.

Similarly, the change to the Gulf EEZ commercial shrimp fishery bycatch reduction criterion will not result in any direct adverse economic impacts on participants in the Gulf EEZ commercial shrimp fishery. However, the change in the bycatch reduction criterion is expected to generate indirect impacts on vessels in this fishery as a result of future certification, provisional certification, or decertification actions. All of these vessels have been determined to be small business entities. Thus, the issue of disproportionality does not apply to this component of the final rule.

The certifications and provisional certifications will affect all vessels in the Gulf EEZ commercial shrimp fishery, as well as some vessels in the South Atlantic EEZ commercial shrimp fishery. Because all of these entities are determined to be small entities, the issue of disproportionality does not apply to this component of the final rule.

The profitability question is: do the regulations significantly reduce profit for a substantial number of small entities?

The revision of the Manual will not directly affect fishery participation or harvest because it merely establishes procedures under which research and gear development may proceed. The bycatch reduction criterion for the Gulf EEZ commercial shrimp fishery will also not result in any direct adverse economic impacts on fishery participants because it is an administrative action.

In addition to the Modified Jones-Davis BRD, the bycatch reduction criterion will allow for the extended funnel BRD to be provisionally certified for use in the Gulf EEZ shrimp fishery, and the composite panel BRD to be provisionally certified for use in the Gulf and South Atlantic EEZ shrimp fisheries. However, these three BRDs are not presently certified for use by the fleet in the western Gulf, are more costly to purchase, and produce greater shrimp loss, on average, than the predominantly used fisheye-type BRDs. As such, no shrimp vessel owners are expected to switch from their current BRDs to these BRDs and no direct impacts are expected to result from the certification or provisional certification of these BRDs.

The bycatch reduction criterion will, however, result in decertification of some currently used BRDs through subsequent regulatory action. Decertification of currently used BRDs will require the use of alternative certified or provisionally certified BRDs, with associated re-gearing costs. Among the BRDs currently in use, the maximum first-year re-gearing cost that could be incurred as a result of future decertification would be that associated with the Jones-Davis BRD, which is the most expensive remaining certified BRD, with an estimated cost of $425 per BRD, and would range from $2,550 per vessel for six BRDs to $4,250 per vessel for 10 BRDs, or between 2.3 percent and 3.8 percent of an average vessel's annual revenues. Lowest BRD replacement costs would be associated with a Modified Jones-Davis BRD, with an estimated cost of $300 per BRD, or $1,800 to $3,000 per vessel. Not all vessels would be required to acquire new BRDs, however, since not all current BRDs would be decertified, and the cheapest and currently most commonly used BRD, a fisheye-type BRD, could continue to be used in a different configuration. Although potential resultant shrimp loss would have to be figured into the decision, some fishermen may elect to retain but move the fisheye BRD as opposed to purchasing a different BRD, thus incurring no replacement costs for the gear itself.

Since different BRDs produce different rates of shrimp retention, the decision of which BRD to use impacts gross revenues as well as operational and gear costs. Depending upon the BRD type currently used and the BRD type that might be selected as a replacement, reductions in average annual gross revenues of up to 3 percent have been projected for small vessels and 2 percent for many large vessels. Actual performance would vary, however, as individual vessels adopt the BRD that best meets their skill and fishing behavior in order to minimize costs and maximize revenues. All associated costs will directly accrue, however, only to a subsequent rule and not to the current action.

This final rule will certify the Modified Jones-Davis BRD for the Gulf and South Atlantic EEZ shrimp fisheries, provisionally certify the extended funnel BRD to be used in the Gulf EEZ shrimp fishery, and provisionally certify the composite panel BRD to be used in the Gulf and South Atlantic EEZ shrimp fisheries. No direct adverse economic impacts will accrue to fishermen in either the Gulf or South Atlantic EEZ shrimp fisheries as a result of these changes because no vessels will be required to use these BRDs. The certification or provisional certification of these BRDs will increase the options available to vessels. Use of these BRDs will be at the discretion of individual fishermen and adoption of the gear would only be expected to occur where it was expected to result in improved economic outcomes.

Two alternatives, the final rule and the status quo, were considered for the action to modify the Manual. The status quo would continue overly restrictive and inflexible testing procedures and would not achieve NMFS' objectives.

Three alternatives, including the status quo, were considered for the change in the BRD bycatch reduction criterion. Two alternatives contained multiple options, resulting in eight effective alternatives. As previously discussed, changing the criterion is an administrative action and would not simultaneously decertify BRDs currently in use or require immediate replacement. Decertification, with attendant costs, however, will occur through subsequent action.

The first alternative to the final bycatch reduction criterion, the status quo, is a specific juvenile red snapper fishing mortality reduction. Maintaining the status quo will result in the decertification of all currently certified BRDs except the Jones-Davis BRD for use in the Gulf. Current data indicate these BRDs do not meet the status quo bycatch reduction criterion. Decertification of these BRDs under the status quo would induce greater industry-wide replacement costs than the bycatch reduction criterion of this final rule because the final rule will allow more BRD options than the single Jones-Davis BRD.

The second alternative to the final bycatch reduction criterion would continue to base the bycatch reduction target on juvenile red snapper, similar to the status quo, but would consider three different minimum thresholds in catch-per-unit-effort (CPUE). The two lower minimum thresholds, 12 percent and 20 percent reductions in juvenile red snapper CPUE, would be expected to allow continued use of the fisheye BRD, resulting in no direct or indirect adverse economic impacts. Neither threshold, however, would meet the objective of the Magnuson-Stevens Act requirement that bycatch be reduced to the extent practicable. The final rule alternative has been identified to improve overall finfish bycatch reduction including juvenile red snapper at rates higher than specified by these alternatives. The highest red snapper bycatch reduction minimum threshold, a 30 percent reduction in juvenile red snapper CPUE, would be expected to result in the same effects as the status quo, because it has not been demonstrated this goal is achievable, resulting in greater indirect adverse economic impacts than the bycatch reduction criterion of this final rule.

The third alternative to the final bycatch reduction criterion would base the bycatch reduction criterion on all finfish species and considered four minimum thresholds, ranging from 10 to 40 percent. The final rule will establish a 30-percent finfish bycatch reduction minimum threshold. The two lower finfish bycatch reduction minimum thresholds, 10 percent and 20 percent, would be expected to allow continued use of fisheye BRDs, resulting in no direct or indirect adverse economic impacts. However, neither threshold would meet the Magnuson-Stevens Act requirement of achieving bycatch reduction to the extent practicable because several available BRDs are already achieving a 30-percent reduction in finfish bycatch. The highest finfish bycatch reduction minimum threshold, 40 percent, would not be expected to result in any direct adverse economic impacts but would be expected to result in indirect increased gear costs equal to those of the status quo, resulting in greater indirect adverse economic impacts than the bycatch reduction criterion of this final rule. This alternative would also set an excessive standard that few BRD designs could achieve.

Copies of the FRFA are available from NMFS (see ADDRESSES ).

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare an FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” As part of this rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all vessel permit holders in the Gulf and South Atlantic shrimp fisheries.

This final rule contains approved collection-of-information requirements--namely, the BRD certification process, consisting of applications for pre- certification or certification of a new BRD, pre-certification adjusting, the testing itself, the submission of the test results, application for observer position, and references for observers, subject to the Paperwork Reduction Act (PRA). These collection-of-information requirements have been approved by OMB under Control Number 0648-0345. The public reporting burden for this collection of information which includes the application, pre-certification phase, testing, and submission of results, is estimated to average 222 hours per test. The public reporting burden for applying for an observer position will average 1 hour per response, and the burden for obtaining references will average 1 hour per response. The collection consists of an Application Form, Vessel Information Form, Gear Specification Form, TED/BRD Specification Form, Station Sheet Form, Species Characterization Form, Length Frequency Form, and Condition and Fate Form. The average response time for each of these forms is 20 minutes, except for the Species Characterization Form which has a 2.8-hour response time and the Application Form which has a 2.3-hour response time. In addition, 4 hours will be needed to prepare the final report. These burden estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of the collection-of-information requirement, including suggestions for reducing the burden, to NMFS and to OMB (see ADDRESSES ).

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of the 2008 Pacific cod TAC allocated to catcher processors using hook-and-line gear in the BSAI is 27,979 metric tons (mt) as established by the 2007 and 2008 final harvest specifications for groundfish in the BSAI (72 FR 9451, March 2, 2007) and revision (72 FR 71802, December 19, 2007). See § 679.20(a)(7)(ii)(A)(4), § 679.20(a)(7)(iv)(A)(2), § 679.20(c)(3)(iii), and § 679.20(c)(5).

In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that the A season allowance of the 2008 Pacific cod directed fishing allowance allocated to catcher processors using hook-and-line gear in the BSAI has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher processors using hook-and-line gear in the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher processors using hook-and-line gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 6, 2008.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by section 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The A season allowance of 2008 Pacific cod sideboard limits apportioned to non-AFA crab vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA is 609 metric tons (mt) for the GOA, as established by the 2007 and 2008 harvest specifications for groundfish of the GOA (72 FR 9676, March 5, 2007) and revision (73 FR 1831, January 10, 2008).

In accordance with § 680.22(e)(2)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A season allowance of the 2008 Pacific cod sideboard limits apportioned to non-AFA crab vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a sideboard directed fishing allowance for Pacific cod as 599 mt in the Gulf of Alaska. The remaining 10 mt in the Gulf of Alaska will be set aside as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by non-AFA crab vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the sideboard directed fishing closure of Pacific cod apportioned to non-AFA crab vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 7, 2008.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 680.22 and is exempt from review under Executive Order 12866.